37 Kan. 636 | Kan. | 1887
The opinion of the court was delivered by
This was an action brought in the district court of Bourbon county, October 15, 1884, by S. P. Snow against C. W. Mitchell, for the recovery of $2,206, and interest and costs. The basis of this action is a judgment ren
The plaintiff demurred to this answer upon the ground that it does not state facts sufficient to constitute a defense to the plaintiff’s action, which demurrer was overruled by the court, and the plaintiff excepted, and as plaintiff in error brings the case to this court for review.
We think the court below erred. The only defense set forth in defendant’s answer is, that the judgment which constitutes the basis of the plaintiff’s action was founded upon another judgment, which was founded upon a promissory note which was indorsed by the defendant without consideration. Now the fact that the note was indorsed without consideration can constitute no defense to this action. It might have been a defense in the action in the U. S. circuit court if it had-been properly interposed in that action. But it was not interposed in that action; and when judgment was rendered in that action, this indorsement without consideration ceased to be a defense in that or in any other action. No defense can be set up against a judgment which might with pr0per ¿lillgence have been interposed in the action in which the judgment was rendered.
The judgment and order of the court below will be reversed, and the cause remanded, with the order that the demurrer to. the defendant’s answer be sustained, and for such other and further proceedings as may be proper in the case.