Cunningham v. Smith

Court of Appeals of Kansas

Cunningham v. Smith

61 P. 458, 10 Kan. App. 407, 1900 Kan. App. LEXIS 159

CourtCourt of Appeals of Kansas

DecidedJune 13, 1900

DocketNo. 639

StatusPublished

This text of 61 P. 458 (Cunningham v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cunningham v. Smith, 61 P. 458, 10 Kan. App. 407, 1900 Kan. App. LEXIS 159 (kanctapp 1900).

Pincite

Opinion

The opinion of the court was delivered by

Schoonover, J. :

This action was brought by plaintiffs in error, as plaintiffs, against defendants in error, as defendants, in the district court of Elk county, to obtain a decree setting aside a former judgment of such court foreclosing a mortgage upon certain real estate occupied by plaintiffs as a homestead, and to have -the title of plaintiff thereto quieted.

The only question presented to us is, Were the plaintiffs entitled, as a matter of right, to a second trial in the court below, under the provisions of section 6, chapter 96, General Statutes of 1897 (Gen. Stat. 1899, § 4894)?

The record shows that plaintiffs were, at the time the action was commenced, in possession of the premises in question, and this action does not come within the class of actions for the recovery of real property. In similar cases, our supreme court has held that the [408]*408defeated party was not entitled, as a matter of right, to a second trial. (Swartzel and others v. Rogers, 3 Kan. 374; Northrup & Chick v. Romary, 6 id. 240; Blackford v. Loveridge, 10 id. 101; Main v. Payne, 17 id. 610.)

The judgment of the district court is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the court was delivered by

Schoonover, J. :

This action was brought by plaintiffs in error, as plaintiffs, against defendants in error, as defendants, in the district court of Elk county, to obtain a decree setting aside a former judgment of such court foreclosing a mortgage upon certain real estate occupied by plaintiffs as a homestead, and to have -the title of plaintiff thereto quieted.

The only question presented to us is, Were the plaintiffs entitled, as a matter of right, to a second trial in the court below, under the provisions of section 6, chapter 96, General Statutes of 1897 (Gen. Stat. 1899, § 4894)?

The record shows that plaintiffs were, at the time the action was commenced, in possession of the premises in question, and this action does not come within the class of actions for the recovery of real property. In similar cases, our supreme court has held that the [408]*408defeated party was not entitled, as a matter of right, to a second trial. (Swartzel and others v. Rogers, 3 Kan. 374; Northrup & Chick v. Romary, 6 id. 240; Blackford v. Loveridge, 10 id. 101; Main v. Payne, 17 id. 610.)

The judgment of the district court is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

61 P. 458, 10 Kan. App. 407, 1900 Kan. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-smith-kanctapp-1900.

Opinion

Related

Cite This Page — Counsel Stack