Challiss v. Headley & Carr

9 Kan. 684

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

'The opinion of the court was delivered by

Brewer, J.:

Some of the questions in this case are identical with those in the case of Foreman v. Scott, just decided, .■and therefore we need not consider them in this. There are also some different questions which will require examination. It is objected as against the decree that it contained a personal judgment for money, and an order for an execution for the amount, if any, unsatisfied by a sale of the mortgaged premises. Conceding this to be unauthorized, it would not affect the validity of the decree for foreclosure and sale, nor authorize a setting aside of the whole judgment and decree. No motion is made to set aside a portion. The motion goes to •the whole. It will be time enough to consider this question when that portion of the entire entry is directly attacked.

Again, it is insisted that upon the sale of the mortgaged premises a deed was given, when there should have been only a certificate of sale according to the redemption act of June 4th, 1861. Such a deed, it is claimed, is'absolutely void. •Conceding that to be true, and the question cannot be litigated .and settled on this motion. If the judgment and decree be valid, defects in the subsequent proceedings cannot be inquired into on a motion to set aside the judgment. More than that, no suggestion of or reference to either of these two points is made in the motion. It is based upon altogether different matters.

The notice of publication needs to be noticed. There were two cases of “Challiss v. Headley & Carr,” one of attachment, and the other of foreclosure. The service in each was by publication. It seems from the record before us that the notice in the attachment was filed .in the foreclosure suit, and ■entered in its final record. So far as any entries made by the ■cleric, on the margin of the record, at the instance of the attorneys, is concerned, they amount to nothing, and do not change the record in the least. All we decide in regard to this notice, is, that if a mistake was made, by filing the wrong notice in the foreclosure suit, this mistake may be ■corrected and the proper notice with proof of its publication be now supplied.

The order of the district court will be reversed and the ■case remanded with instructions to permit the amendments to be made, the motion afterwards to be decided according to the principles here laid down.

All the Justices concurring.