109 Kan. 518 | Kan. | 1921
The opinion of the court was delivered by
This was a foreclosure proceeding. A promissory note was executed August 14, 1907, by William F. Messner, Charles Messner and Augusta Messner, for $1,050, payable five years after date to J. G. Petgen, and a mortgage of the same date on land in Kansas was executed to secure it. Both were executed in Missouri. Petgen died in 1915, and the note and mortgage were assigned to Timmonds who was also a resident of Missouri. On July 10, 1919, the action of foreclosure was begun, the plaintiff alleging the execution of the
As to Charles Messner who died just before the cause of action accrued, it was shown that he had lived in Colorado for a number of years and that no administration of his estate was had. His death would suspend the statute, but only for a brief time. It has been held that the suspension would only be for such a, period as would afford the creditor an opportunity to have an administrator appointed. The law of Colorado re
It is further contended by the plaintiff, that the evidence was insufficient to establish the defense that was made, and particularly as to an affidavit of William F. Messner which was used as a deposition. It is said that the affidavit should not have been received or considered because the requirements of section 350 of the civil code as to service of the same were not followed. It was served upon an attorney in the office of the attorney of record, who acknowledged the service of it as an attorney for the plaintiff. Shortly afterwards a motion was filed in the case signed in the partnership name as attorneys for plaintiff, which included the name of the attorney who acknowledged service of the notice. The day following the filing of the affidavit the attorney, signing the acknowledgment of service, served a notice upon the person who made the service and who had no connection with the case as party or attorney, that plaintiff desired to cross-examine the affiant. No cross-examination was had but the affidavit was received. The record does not show a specific objection to the affidavit, but it does recite that at the opening of the defense an objection was made to the introduction of any testimony on the part of the defendants for the. reason that the facts alleged did not 'constitute a meritorious defense to plaintiff’s claim. It is stated in the journal entry that the court reserved its decision on the objection made and proceeded with the trial of the case. No further reference is made to the objection, but it is recited that the court after hearing the evidence of both parties, proceeded to render judgment in favor of the plaintiff. The evidence was certainly brought before the court. No application was after-
Upon the evidence in the record the court was not warranted in upholding the default judgment which had been opened up or in confirming the proceedings taken under that judgment. The judgment rendered will therefore be reversed, and the cause remanded for further proceedings in accordance with the opinion expressed herein.