Westervelt v. Jones

5 Kan. App. 35 | Kan. Ct. App. | 1896

1. Jurisdiction prima facie presumed.

Gilkeson, P. J.

The defendants in error contend, that the judgment or decree sued upon shows on its. face that it was rendered after the court, by dismissing the case, had, as to them, lost jurisdiction of the parties and of the cause ; and that, consequently, the demurrer was properly sustained. We '. *,1,1 . (1 ■ , cannot agree witJi them in this conten0 t-ion. The record shows that, at one time, the court did have jurisdiction of the defendants in error; and being a court of general jurisdiction, it will be presumed, until the contrary is shown, that the jurisdiction once acquired continued. “A want of jurisdiction must affirmatively appear, either by the record, or dehors the record, or it will be conclusively presumed.” Black, Judgments, § 896.

“ It will be presumed, in the absence of evidence to the contrary, in favor of courts of general jurisdiction of sister states, that they have the authority they assume to exercise, and that the modes of procedure pursued by them, though different from that established by the laws of this state, are authorized by the laws of the state in which they act.” Dodge v. Coffin, 15 Kan. 277 ; Ward v. Baker, 16 id. 81; Comstock v. Adams, 23 id. 525.

The stipulation is inartistically drawn, but the evident intention of the parties was that two hundred acres of land in Texas County, Missouri, should be conveyed to Joplin; that the court should secure to him a lien upon the lands in Franklin County, Illinois, for the amount of the judgment Doty had obtained against him; and that L. M. Jones and J. L. Jones should assume the payment of that judgment. These were the consideration for the dismissal. This is clearly the construction placed upon the stipulation by the Circuit Court of Franklin County; and that court acted upon this understanding in doing what it did. It rendered a decree for the conveyance of the Missouri land, and it undertook to make the Joneses legally liable to pay the Doty judgment, by creating a lien upon the land in Franklin County, Illinois, in the way the court evidently believed was the only way it could be effectually done — by rendering a judgment for the amount; and, to protect all the parties, the court further provided that this judgment should be satisfied upon the payment of the Doty judgment. If the court committed error in this, it cannot be considered or reviewed by a court in which the judgment is sued upon. Freeman, Judgments (3d ed.), § 330 ; Black, Judgments, § 889 ; Semple v. Wright, 32 Cal. 659.

But did the court dismiss the case as to the Joneses or as to any one else ? We think not. The judgment is : “ That this cause be dismissed upon the conditions stipulated in said agreement.” In the judgment, the court enforced the terms and conditions of the entire stipulation, as it understood it, and as it had the power to do by the terms of the stipulation. The whole judgment was a single act, done while all the parties were present and while the court still had jurisdiction.

But suppose we concede that the record shows that the case was dismissed as to the Joneses. It shows that the court did render a judgment as though it still had jurisdiction of their persons, and it will be presumed, in the absence of any showing to the contrary, that the case was reinstated. The court certainly had power to reinstate it, and, “being a court of general jurisdiction, the presumption is in favor of the authority which it assumed to exercise.” We think there is no conflict between the exhibit and the averments of the petition.

2. Action of generai demurrer,

The other points urged by defendants in error in their brief we do not consider at this time. The only question raised by the pleadings is raised by a general demurrer. As we have stated, this only raises the question of the sufficiency of the allegations of the petition to state a cause of action, and does not challenge the right of the plaintiff to maintain an action for the cause of action if any exists.

The judgment of the court sustaining the demurrer will be reversed, and the cause remanded for further proceedings.