117 Kan. 535 | Kan. | 1925
The opinion of the court was delivered by
This is an appeal from an order of the court sustaining an application for a writ of assistance on behalf of the purchaser at a foreclosure sale. The record before us shows' substantially the following:
On December 3, 1921, Sutor Brothers filed suit upon two notes executed by Fred Hebert and wife and to foreclose a first and second mortgage upon land given to secure the notes. In that suit the First National Bank of Palco was made a party defendant. The bank
To this answer a reply was filed: first, a general denial; second, that the title to the lands had been adjudicated by the judgment in the case; third, denial that a demurrer was pending undisposed of at the time judgment was taken.
On February 20,1924, upon application of the bank, an order was made spreading a journal entry nunc pro tunc of proceedings of February 7, 1922, overruling Hebert’s demurrer to the plaintiff’s petition.
On February 21, 1924, the application of the bank for writ of assistance came on for hearing. The defendant, though notified of the hearing, did not appear. His application for a jury trial was denied, and the court, having heard the evidence, allowed the application for the writ of assistance. Thereafter, and on the same day, Hebert appeared by his attorney and asked the court to fix the amount of supersedeas bond and for a stay pending appeal to this court. This request was granted and the bond given.
Appellant contends, first, that the court erred in sustaining the application of appellee for a writ of assistance; second, that the
Disposing of the second point first: Counsel have cited us to no authority, and our own research discloses none, requiring or authorizing a jury trial upon the hearing of an application for a writ of assistance in a foreclosure proceeding. The authorities seem unanimous to the effect that the granting, or refusing to grant, an application for a writ of assistance in such a proceeding is the exercise of equity jurisdiction. (5 C. J. 1317; 2 R. C. L. 730; Motz v. Henry, 8 Kan. App. 416; Bird v. Belz, 33 Kan. 391, 6 Pac. 627; Watkins v. Jerman, 36 Kan. 464, 13 Pac. 798; Lundstrum v. Branson, 92 Kan. 78, 139 Pac. 1172.) There was no error in refusing a jury trial upon the application.
Appellant contends that the court erred in granting the application, because (a) the judgment was taken May 1, 1922, when his demurrer to the petition was undisposed of; (6) at an adjourned session of court of which he had no notice; and (c) because of a suit pending to set aside the judgment for the reasons above stated, and for the further reason that since the judgment a part of the indebtedness to the bank has been paid, the pleading in which suit was referred to in his answer to the application for the writ. It will be observed that none of these objections go to the jurisdiction of the court to render the judgment of May 1, 1922. Generally speaking, irregularities in the proceedings which do not go to the jurisdiction of the court are not a defense to an application for a writ of assistance. (2 R. C. L. 739; 5 C. J. 1322,1323.) Two portions of the record show that the demurrer was disposed of before judgment was rendered; the judgment itself recites that defendant was in default, and the journal entry nunc pro tunc shows that the demurrer was disposed of in February, 1922. In addition to that, the statute provides (R. S. 60-3010) that a motion to vacate a judgment, because of its rendition before the action regularly stood for trial, can be made only in the next three days of the succeeding term. This was not done. There is no merit in appellant’s contention that the judgment was prematurely taken. Neither is there any merit in the contention that the judgment was taken at-an adjourned term of court.
Appellant’s contention that the writ of assistance should not have been allowed because there had been a substantial payment upon
The judgment of the court allowing the writ of assistance is affirmed.