47 Kan. 511 | Kan. | 1891
This action was brought under §§ 568 and 570 of the civil code, to vacate a judgment alleged to have been obtained through the fraud of the plaintiffs in error* The questions in the case arise upon the ruling of the court upon the demurrer filed against the petition of the plaintiffs below. It was first contended that there was no joint cause of action in favor of the defendants below, and this is based on the statement in their petition that some of the defendants in the original action were never served with summons and made no appearance in that action, while others of the defendants were served and properly brought into court. It is said as to those who were never served, and who never entered their appearance in the case or authorized anyone to enter an appearance for them, that the judgment was absolutely void; while as to the other class, who were served, the judgment was only voidable; and so it is urged that the judgment rendered affected a part of the defendants in an entirely different manner from that in which it affected the others. It is contended that because the judgment was absolutely void as to some of them, the proper proceeding to set it aside was by a motion, under the last clause of § 575 of the civil code. It appears, however, that this proceeding was not brought under the last clause of § 575, nor were the defendants in error confined to that remedy. (List v. Jockheck, 45 Kas. 349, 748; same case, 27 Pac. Rep. 185; Hanson v. Wolcott, 19 Kas. 207.) The action is manifestly brought to set aside the judgment for “fraud practiced by the successful party in obtaining the judgment.” The allegations of fraud apply to those not served as well as to those who were served; and all of the defendants in error were affected by the fraud as alleged to have been practiced, and all are entitled to relief against the judgment so obtained. The objection of misjoinder cannot therefore be sustained.
The next objection is, that the allegations respecting the fraud practiced are not sufficiently full and specific to constitute a good petition or require an answer. It is true that a
There is considerable complaint that the petition is not sufficiently. definite and certain in its allegations; but these objections cannot be cured in a review of a ruling upon the demurrer. We think the court might properly have required the defendants in error to have set o.ut copies of the pleadings upon which the judgment sought to be vacated was founded, as the pleadings may throw some light on the character and
We conclude that the demurrer to the petition was properly overruled, and therefore the ruling of the district court will be affirmed.