Mack v. Austin

72 P. 551, 67 Kan. 36, 1903 Kan. LEXIS 201

• Court: Supreme Court of Kansas
• Decided: May 9, 1903
• Docket: No. 13,095
• Status: Published

Opinion

The opinion of the court was delivered by

Cunningham, J.:

It is urged by Mack that as to her the action in essence was one in replevin for the possession of the note and mortgage, and that therefore she could not, under any proper construction of our statute, be brought in by service of summons by publication. The amended petition, with answer and reply which followed, together presented no issues other than those tendered by the original petition ; hence we shall consider the question as though it arose solely upon the allegations of the original petition. While in that petition are found averments that the possession of the note was unlawfully obtained and detained by Mack, that she had no right or title to, or interest in, them, and prayed the order of the court that she be required to deliver them up to the plaintiff, still these allegations and this answer were entirely superfluous. The gravamen of the action, as against Mack, was that she claimed some interest in the real estate upon which the mortgage was sought to be foreclosed, and the object of the action, as against her, was to divest her of such interest. True, the naked allegation that she claimed such interest would have been sufficient, but the fact that the nature of the claim was set out fully, and showing made that such claim was untenable, did not vitiate the petition, the essence being, as we have remarked, that she was making a claim of interest in the subject of the action, and was therefore a necessary party to the complete determination of the questions involved. She was, therefore, a proper party to be joined, under section 36 of the code of civil procedure. (Gen. Stat. 1901, § 4464.)

As the subject of the action was real property, and the plaintiff’s petition showed that Mack was claiming some lien or interest therein, and as she was a non-resident of the state, it was proper under section 72 of the code of civil procedure (Gen. Stat. 1901, § 4506) to bring her in by service of summons made by publication. We might further add that it seems that she made full appearance by the filing of her various answers, motions, and demurrers. At any rate, we think that the court had full jurisdiction over her to render the judgment which it did.

Plaintiff in error further complains that there was no proper evidence connecting the note upon which plaintiff brought his action with that which was sold by the Globe Investment Company to her. We are unable to agree with this contention. Aside from the evidence found in the record, which we deem abundant to establish this fact, there is also found this statement made by her counsel in open court during the progress of the trial: ‘ ‘ Defendants produce in court the note and mortgage sued on by the plaintiff, and an extension agreement thereof.” This statement beyond question connects the note and mortgage upon which plaintiff’s suit was based with that in the hands of defendant Mack.

The judgment of the court below will be affirmed.

All the'Justices concurring.