13 Kan. 45 | Kan. | 1874
The opinion of the court was delivered by
Portions of this litigation have been brought to -this court at least six times. Four cases have been reported, to-wit: Wheatley v. Tutt, 4 Kas., 195; Wheatley, et al., v. Tutt, 4 Kas., 240; Wheatley v. Terry, 6 Kas., 427; and Ferguson v. Tutt, 8 Kas., 378. One case was dismissed, to-wit, A. B. Bartlett v. Wheatley, et at.; and this is the sixth case. Other cases were litigated in the court below, which have not been brought to this court. In this opinion we shall mention such cases only as have some bearing upon
The record upon which this reversal is asked shows as follows: On September 9th, 1861, an action was commenced by Thomas E. Tutt, Dent G. Tutt and John F. Baker against Wilkins T. Wheatley and Thomas F. Thatcher. An attachment was issued therein and levied on Lot 5, in Block 6, in the city of Wyandotte. Judgment was rendered in the case on April 10th, 1863, in favor of Tutts and Baker and against Wheatley & Thatcher for $1,483, and costs, and said lot was ordered to be sold. Afterward the undivided-half of said lot was sold at sheriff’s sale to Tutts and Baker for the sum of $1,667, and the sale was.confirmed October 5th, 1863. Tutts and Baker took a sheriff’s deed for said undivided-half of said lot, and the sheriff returned the writ for the sale of said property satisfied. Afterward the confirmation of said sale was reversed by the supreme court, (Wheatley v. Tutt, 4 Kas., 195,) and the mandate from the supreme court was filed in the district court at the January Term (so the record shows, but qucere,) 1867. Nothing seems to have been done with said case, or concerning it, since. ■ Hence we suppose Tutts and Baker have lost their judgment-lien, (code of 1859, §434; code of 1868, §445,) and have also lost their interest in the lot, (code of 1859, §458; code of 1868, §467.) On May 20th, 1865, another suit was commenced in which Michael Dively, Edward McCarty and Edmund Terry were plaintiffs, and Wilkins T. Wheatley, Thomas F. Thatcher, Moses M- Brodwell, The Great Republic Insurance Company, Thomas E. Tutt, Dent G. Tutt, John F. Baker, John M. Chrysler, Gabrilla H. Wheatley, Mary Thatcher and Isabella Chrysler were defendants. This action was on a note given by Wheatley & Thatcher to Brodwell, and indorsed by Brodwell (waiving presentment, notice, etc.,) to Terry. The
1865, in favor of Terry and against Wheatley & Thatcher for $2,317.90, and costs. The court found that Terry’s lien on said lot was prior to that of Tutts and Baker, and ordered that if said judgment was not paid in ten days said undivided-half of said lot should be sold to pay, first, the costs, next, Terry’s judgment of $2,317.90 and interest, and then that the remainder should be paid to Tutts and Baker, and that all the parties’ interests in said undivided-half of said lot should be forever afterward barred and foreclosed. It seems from the record that on October 20th, 1865, (precisely ten days after the judgment was rendered,) Brodwell paid to Terry in New York city the precise amount of Terry’s judgment, (less costs and interest,) to-wit: $2,317.90. Yet, strange as it may seem, nobody knew of- this payment, except possibly Brodwell and Terry, until about six years afterward. After this supposed payment Terry’s counsel, to-wit, Bartlett, filed a precipe in the district court for an execution on said judgment. The clerk of the district court, said James A. Cruise, issued it; and the sheriff of said county, said P. S. Ferguson, sold the said property under it to said M. M. Brodwell, the person who, it is said, paid said judgment. But Brodwell failed, however, to make payment on said sale, and the sheriff therefore returned no sale. Upon this execution however the sheriff collected from Chrysler about $125, which was sufficient to pay all the costs. An alias execution was then, on May 24th, 1866, issued by said clerk (on the precipe of Tutts and Baker) to said sheriff, and the sheriff then sold said property, (the undivided-half of said lot,) on July 14th, 1866, to said Bart
On February 7th, 1868, Thomas E. Tutt, Dent G. Tntt, and John F. Baker commenced an action against P. S. Ferguson, sheriff, and John E.. Zeitz, Isaiah Walker and James A. Cruise, sureties on the official bond of said sheriff, to recover from said sheriff and his sureties the amount , which said sheriff collected or ought to have collected from Chrysler and Bartlett on the last-mentioned judgment after deducting the amount it would take to pay the judgment in favor of Terry and costs. In June, 1869, judgment was rendered in this case in favor of Tutts and Baker, and against Ferguson and his sureties, for $2,350, and costs. This case was taken to the supreme court by Ferguson and his sureties, and at the July Term 1871 of the supreme court the judgment of the court below was affirmed. (Ferguson v. Tutt, 8 Kas., 370.) In October, 1871, an execution was issued for the collection of this last-mentioned judgment, and following said execution the following proceedings were had: On December 30th, 1871, the present action was commenced by Pembroke S. Ferguson, James A. Cruise, John E. Zeitz, Isaiah Walker, Moses M. Brodwell, and Allison B. Bartlett as plaintiffs, against Thomas E. Tutt, Dent G. Tutt, John F. Baker, Wilkins F. Wheatley, Thomas F. Thatcher and Edmund
First. The said Terry judgment was paid on October 20th, 1865. The judgment on the sheriff’s bond, now sought to be perpetually enjoined, was rendered in June, 1869, nearly four years after said payment was made. The judgment in the case at bar perpetually enjoining the last-mentioned judgment was rendered June 17th, 1872, nearly seven years after the payment of said Terry judgment, and about, three years after the judgment was rendered now sought to be enjoined. Now if the fact.of the payment of said Terry judgment is a good ground for enjoining the said judgment on the sheriff’s bond, then, a fortiori, it would have been a good ground for not rendering said judgment on the sheriff’s bond. In other words, said payment would have been a good defense to the action in which said judgment on the sheriff’s bond was rendered. But it was not interposed in that action. Why not? The principal defendants in the court below, except Ferguson, (who did not testify in the case at bar,) testified that they did not know of said payment at the time said action was pending, nor at any other time since up to about the time of the commencement of this action, which was December 30th, 1871, over six years after said payment was made. But why did they not know it? Did they exercise any diligence in hunting up their defenses? Were they not guilty of the grossest negligence in not knowing of said payment in time
“He was employed as attorney for the defendants in the suit of Thomas E. Tutt, et al., v. Wilkins T. Wheatley, et al.;” “that he has been employed in such capacity on-one side or the other in all suits and actions that grew out of the proceedings therein; that he was sole attorney of the plaintiffs in the cause wherein Edmund Terry et al. were plaintiffs and Wilkins T. Wheatley et al. were defendants; he had the sole control of the note and trust-deed declared upon in said last-named suit, and had the entire control of the judgment rendered therein;” “that he has had frequent and continued correspondence with said Edmund Terry, who recovered the judgment upon the note and trust-deed aforesaid;” “that this deponent had no knowledge or intimation from said Terry, or from any other jterson, by letter or otherwise, that the judgment in favor of said Terry in said cause had been paid until since the last term of this court, and a short time before filing the petition in this cause.”
The petition in this cause was filed December 30th, 1871, and the said judgment was paid October 20th, 1865. Brodwell who paid said judgment to Terry is still living, and is one of the plaintiffs below (defendants in error) in this case. It will be remembered that it was nearly a year after said judgment was paid by Brodwell before said sale was made; more than a year before it was confirmed; nearly four years before any attempt was made by any one to set aside either the sale or the confirmation thereof; and more than six years before any attempt was made to avoid the sale on the ground that the judgment had previously been paid. Does this show diligence? Why did not some of the parties inform Terry or Brodwell that there was litigation concerning said sale? Why did not the sheriff, (Ferguson,) or Terry’s counsel, (Bartlett,) inform Terry of said sale, and inquire of him what they should do with that portion of the proceeds thereof, to-wit, $2,317.90 and interest, belonging to Terry? Why did not some one of the parties now interested in having said judgment against the sheriff and his sureties enjoined
Second: But it is claimed that said judgment should be enjoined bécause said sheriff sale was subsequently ordered to be set aside by the supreme court. There are several answers to this: lst.-Said sale was ordered to be set aside for a supposed irregularity, which never in fact existed. It was ordered to be set aside purely for the fault of the sheriff himself in making a false return. And can he now take advantage-of his own wrong? Is it possible-for an officer to ci’eate a good cause of action, (as is claimed he can in this case,) or a good defense (as is claimed he can to the action on the sheriff’s bond,) in favor of himself by his own wrongful acts? We suppose not. 2d.-Tutts and Baker were not made parties, and had no notice of said motion to set aside said sale, and hence the motion was rightfully overruled in the district court as to them. (Mitchell v. Milhoan, 11 Kas., 617.) Whatever order however might have been made on the motion would under such circumstances have been immaterial as to them. 3d. — Tutts and Baker were not made parties to the petition in error in the supreme court, nor had they any notice thereof; and hence said order of reversal could not affect them or their rights. (Ferguson v. Smith and Dunham, 10 Kas., 401; Armstrong v. Durlund, 11 Kas., 15; Hodgson v. Billson, 11 Kas., 357.) No judgment of reversal
The decree of the district court perpetually enjoining the collection of said judgment is reversed, and a new trial awarded.