The opinion of the court was delivered by
Valentine, J.:
This was an action to set aside a certain order of the district court; claimed to be void, and for the [625]*625recovery of certain moneys'belonging to the defendant in error, formerly in the hands of the sheriff, but paid over by the sheriff .to the plaintiffs in error in pursuance of said order of the district court. The judgment below was in favor of Milhoan, plaintiff below, and the defendants below bring the case to this court.
At the commencement of the trial in the court below a question was raised by the defendants as to the sufficiency, of the petition, by objecting to the introduction of any evidence under it on the ground that it did hot state facts sufficient to constitute a cause of action. This objection was overruled by the court, and the defendants excepted. Objections were also made to the introduction of certain particular portions of the evidence for other and special reasons, which objections were also overruled, and the defendants excepted. Motions were also made for a new trial, setting- up various grounds therefor, which motions were also overruled, and the defendants excepted.
1. Motion for new trial. We cannot consider the motions for a new trial, for the reason 'that they were filed too late. (Odell v. Sargent, 3 Kas., 80.) They were not filed until five days afl(;er ¿[ecj[gj|on 0f COurt, although they should have been filed within three days thereafter. (Code, § 308.) These motions did not set up the ground of newly-discovered evidence, and no reasons were given why said motions were not filed sooner. The court therefore properly overruled them.
2. Petition; sufficiency of practice. The objections to the introduction of evidence, except for the reason that the petition did not state facts sufficient to constitute a cause of action, will not require any discussion from this court, for reasons that will become ob- . , ■, vious to any one who will examine said objections. The plaintiffs in error do not as we understand rely upon them in this court. The only questions then for us to consider are, whether the petition states facts sufficient to constitute a cause of action, and whether the petitions and findings taken together sustain the judgment. This latter question, and [626]*626indeed the first, may generally be considered by the supreme court whether any exception has been taken to any ruling of the district court or not. (Wilson v. Fuller, 9 Kas,, 176; Greer v. Adams, 6 Kas., 206.) The subsequent proceedings however, the answer, the reply, the evidence, the findings or verdict,' often cure a defective petition. (Barrett v. Butler, 5 Kas., 355, 359; Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244; Zane v. Zane, 5 Kas., 140.) This is generally the case where no objection is made to the petition in the court below, or where the objection is made by merely objecting to the introduction of any evidence under the petition; and except where the objection is made by demurrer, or by a motion to require the plaintiff to make his petition or some allegations thereof more formal or more definite and certain, the objection should generally be overruled, unless there is a total failure to allege some matter essential to the relief sought; and the objection should seldom if ever be sustained where the allegations are simply incomplete, indefinite, or conclusions of law. Laithe v. McDonald, 7 Kas., 254, 261, 262; Fitzpatrick v. Gebhart, 7 Kas., 35, 40, 41; Greer v. Adams, 6 Kas., 206; Hawley v. Histed, 10 Kas., 266. Viewed in this light, the petition in the present case is sufficient, even if it should be required to allege all that the plaintiffs in error claim that it should allege. The petition among other things alleges the following facts: Two judgments were rendered against Milhoan, each in a separate and independent action, one in favor of the People’s Savings Bank of Olathe and against Milhoan and wife, and the other in favor of David H. Mitchell, and against Milhoan alone; the first judgment was rendered on a note and mortgage, and was a lien on the homestead of Milhoan and wife; on this first judgment, said homestead was sold for the sum of $4,334; after said sale was confirmed, and said first judgment satisfied out of the proceeds thereof, there still remained in the hands of the sheriff the sum of $3,060.93 as a surplus fund, which fund was not liable to be applied in payment of said second judgment; the district court then made an order, [627]*627without any notice to Milhoan, that the sheriff should satisfy this second judgment out of this surplus fund; the sheriff, in pursuance of said order paid over to Devenney & Green, as attorneys for Mitchell $1540.58 out of said surplus fund, and in satisfaction of said judgment. The plaintiffs in error claim that the said petition was defective for the foL lowing reasons: 1st, It showed the sheriff had a right by virtue of said order to pay said money over to Mitchell, or to his attorneys. 2d, It showed that the -sheriff had an execution in his hands issued under said second judgment, and therefore that he had a right by virtue of said execution to pay over said money as he did, whether said order was valid or not. 3d, It showed that said Devenney & Green were only attorneys for Mitchell, and were therefore not liable for the money paid to them.
3. Homestead; exemption of surplus of proceeds of sale. [628]*628Hearing motions time; notice. [627]*627First: The court had no right to make said order. Said surplus fund could not legally be subjected to the payment of Mitchell’s judgment. It was the proceeds of the forced sale of Milhoan’s homestead, and was } therefore exempt as long as Milhoan intended to use it in acquiring another homestead. We do not however purpose to discuss at present the question whether said surplus fund was or could be made liable for the payment of Mitchell’s judgment, for we think said order was void, or at least voidable, for other reasons. The Mitchell judgment was rendered August 28th 1871; the bank judgment was rendered November.23d 1871; an order of sale was issued thereon (on the bank judgment) December 6th 1871; the homestead was sold January 13th LS72; the sale was confirmed on or before January 16th 1872; the motion was made for said order (that the sheriff apply the surplus to Mitchell’s judgment) January 16th 1872, and on the same day the motion was heard and the order granted; the sheriff paid said money, $1554.25, to Devenney & Green, attorneys for Mitchell, January 20th 1872; and Devenney & Green paid $1429.25 of the same to Mitchell on January 21,1872, retaining $125 as attorney-fees for themselves. This was an [628]*628extraordinary order. It was made in an action iong after judgment was rendered therein, at a subsequent term of the court, in the absence of Milhoan, without any notice of any kind ever having been given to or received by him, and on the same day that the motion for the order was made. This is not such an order as may be made without notice, or as, may be made as of course in the case, or such as the parties are required to anticipate; nor is it one for which the parties are bound to remain in court and watch. It could only be made (if it could be made at all) upon proper and sufficient notice. Milhoan never had any opportunity to appear and oppose the motion for said order.
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The opinion of the court was delivered by
Valentine, J.:
This was an action to set aside a certain order of the district court; claimed to be void, and for the [625]*625recovery of certain moneys'belonging to the defendant in error, formerly in the hands of the sheriff, but paid over by the sheriff .to the plaintiffs in error in pursuance of said order of the district court. The judgment below was in favor of Milhoan, plaintiff below, and the defendants below bring the case to this court.
At the commencement of the trial in the court below a question was raised by the defendants as to the sufficiency, of the petition, by objecting to the introduction of any evidence under it on the ground that it did hot state facts sufficient to constitute a cause of action. This objection was overruled by the court, and the defendants excepted. Objections were also made to the introduction of certain particular portions of the evidence for other and special reasons, which objections were also overruled, and the defendants excepted. Motions were also made for a new trial, setting- up various grounds therefor, which motions were also overruled, and the defendants excepted.
1. Motion for new trial. We cannot consider the motions for a new trial, for the reason 'that they were filed too late. (Odell v. Sargent, 3 Kas., 80.) They were not filed until five days afl(;er ¿[ecj[gj|on 0f COurt, although they should have been filed within three days thereafter. (Code, § 308.) These motions did not set up the ground of newly-discovered evidence, and no reasons were given why said motions were not filed sooner. The court therefore properly overruled them.
2. Petition; sufficiency of practice. The objections to the introduction of evidence, except for the reason that the petition did not state facts sufficient to constitute a cause of action, will not require any discussion from this court, for reasons that will become ob- . , ■, vious to any one who will examine said objections. The plaintiffs in error do not as we understand rely upon them in this court. The only questions then for us to consider are, whether the petition states facts sufficient to constitute a cause of action, and whether the petitions and findings taken together sustain the judgment. This latter question, and [626]*626indeed the first, may generally be considered by the supreme court whether any exception has been taken to any ruling of the district court or not. (Wilson v. Fuller, 9 Kas,, 176; Greer v. Adams, 6 Kas., 206.) The subsequent proceedings however, the answer, the reply, the evidence, the findings or verdict,' often cure a defective petition. (Barrett v. Butler, 5 Kas., 355, 359; Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244; Zane v. Zane, 5 Kas., 140.) This is generally the case where no objection is made to the petition in the court below, or where the objection is made by merely objecting to the introduction of any evidence under the petition; and except where the objection is made by demurrer, or by a motion to require the plaintiff to make his petition or some allegations thereof more formal or more definite and certain, the objection should generally be overruled, unless there is a total failure to allege some matter essential to the relief sought; and the objection should seldom if ever be sustained where the allegations are simply incomplete, indefinite, or conclusions of law. Laithe v. McDonald, 7 Kas., 254, 261, 262; Fitzpatrick v. Gebhart, 7 Kas., 35, 40, 41; Greer v. Adams, 6 Kas., 206; Hawley v. Histed, 10 Kas., 266. Viewed in this light, the petition in the present case is sufficient, even if it should be required to allege all that the plaintiffs in error claim that it should allege. The petition among other things alleges the following facts: Two judgments were rendered against Milhoan, each in a separate and independent action, one in favor of the People’s Savings Bank of Olathe and against Milhoan and wife, and the other in favor of David H. Mitchell, and against Milhoan alone; the first judgment was rendered on a note and mortgage, and was a lien on the homestead of Milhoan and wife; on this first judgment, said homestead was sold for the sum of $4,334; after said sale was confirmed, and said first judgment satisfied out of the proceeds thereof, there still remained in the hands of the sheriff the sum of $3,060.93 as a surplus fund, which fund was not liable to be applied in payment of said second judgment; the district court then made an order, [627]*627without any notice to Milhoan, that the sheriff should satisfy this second judgment out of this surplus fund; the sheriff, in pursuance of said order paid over to Devenney & Green, as attorneys for Mitchell $1540.58 out of said surplus fund, and in satisfaction of said judgment. The plaintiffs in error claim that the said petition was defective for the foL lowing reasons: 1st, It showed the sheriff had a right by virtue of said order to pay said money over to Mitchell, or to his attorneys. 2d, It showed that the -sheriff had an execution in his hands issued under said second judgment, and therefore that he had a right by virtue of said execution to pay over said money as he did, whether said order was valid or not. 3d, It showed that said Devenney & Green were only attorneys for Mitchell, and were therefore not liable for the money paid to them.
3. Homestead; exemption of surplus of proceeds of sale. [628]*628Hearing motions time; notice. [627]*627First: The court had no right to make said order. Said surplus fund could not legally be subjected to the payment of Mitchell’s judgment. It was the proceeds of the forced sale of Milhoan’s homestead, and was } therefore exempt as long as Milhoan intended to use it in acquiring another homestead. We do not however purpose to discuss at present the question whether said surplus fund was or could be made liable for the payment of Mitchell’s judgment, for we think said order was void, or at least voidable, for other reasons. The Mitchell judgment was rendered August 28th 1871; the bank judgment was rendered November.23d 1871; an order of sale was issued thereon (on the bank judgment) December 6th 1871; the homestead was sold January 13th LS72; the sale was confirmed on or before January 16th 1872; the motion was made for said order (that the sheriff apply the surplus to Mitchell’s judgment) January 16th 1872, and on the same day the motion was heard and the order granted; the sheriff paid said money, $1554.25, to Devenney & Green, attorneys for Mitchell, January 20th 1872; and Devenney & Green paid $1429.25 of the same to Mitchell on January 21,1872, retaining $125 as attorney-fees for themselves. This was an [628]*628extraordinary order. It was made in an action iong after judgment was rendered therein, at a subsequent term of the court, in the absence of Milhoan, without any notice of any kind ever having been given to or received by him, and on the same day that the motion for the order was made. This is not such an order as may be made without notice, or as, may be made as of course in the case, or such as the parties are required to anticipate; nor is it one for which the parties are bound to remain in court and watch. It could only be made (if it could be made at all) upon proper and sufficient notice. Milhoan never had any opportunity to appear and oppose the motion for said order. He never had his day in court; and therefore the obtaining of said order was a legal fraud upon him, and the order must be considered in this action (which is an action in part to set aside said order) as voidable, if not absolutely void, and as giving the parties obtaining it no right. (See authorities cited in brief of defendant in error.)
4. Proceeds of sale of homestead; when and to what extent exempt. Pleading; negative averments. What defects may be disregarded. Second: There is at.least one answer to the second claim of the defendants below, plaintiffs in error. Said money was the proceeds of the forced sale of Milhoan’s homestead, and was therefore exempt from any execution issued on any iudgment which was not a lien on Milhoan’s homestead, so long as he desired and expected to use said money in purchasing another homestead, or in redeeming his aforesaid homestead from said sale, as the evidence shows he subsequently in fact did: Keyes v. Rines, 37 Vt., 260. Upon kindred questions, see Pearson v. Minturn, 18 Iowa, 36; Sargent v. Chubbuck, 19 Iowa, 37; Robb v. McBride, 28 Iowa, 386; Marshall v. Ruddick, 28 Iowa, 487. This is evidently the spirit of our homestead laws, and we think we should construe them liberally so as to carry out their spirit. The plaintiffs in error claim that the petition below was defective because it did not negative the exceptions contained in the homestead laws, to-wit — “first, that Mitchell’s judgment was not for taxes; second, that Mitchell’s judgment was not based [629]*629upon an obligation contracted for the purchase-money of the premises; third, that the note upon which Mitchell’s judgment is based was not given for the erection of improvements thereon; fourth, that Mitchell’s execution was not obtained by virtue of a lien given by the consent of Milhoan and his wife; fifth, that the premises are not situate within the limits of an incorporated town or city; and sixth, that said premises so sold did not exceed 160 acres of land.” Now, if it was necessary for the plaintiff below to state these matters in his petition, (but queere, was it necessary?) still w.e think the petition was sufficient to withstand any objection made against it in the court below when we consider the time and- manner in which such objection was made. It is true that some of these matters, perhaps nearly all of them, were stated defectively, or inferentially, or as conclusions of law from facts, and not the facts themselves. But such statements (as we have already stated) áre sufficient to withstand such an objection as was made in this case. The plaintiff below alleged in his petition, “that he the said plaintiff, being the head of a family did then [December 19th, 1870,] occupy and keep the said lands and tenements as his homestead,” and that “said money [said surplus fund of $3,060.93,] the plaintiff avers was not liable [January 13th 1872, and subsequently,] to execution in' the hands of the said sheriff, nor liable for the payment of any debt or obligation or judgment, the same being the proceeds of judicial sales of the homestead of the said Thomas E. Milhoan, he being the head of a family.” (See Keyes v. Rines, 37 Vt., 260.) It must be admitted that these allegations are very informal, and not sufficient if the question had been raised by a motion to make the same more definite and certain, and probably not sufficient -if the question had been raised by demurrer. In the discussion of this question we have assumed that said money would have been liable to be applied in satisfaction of the execution issued on the Mitchell judgment if the same had not been the proceeds of the forced sale of Milhoan’s homestead. But would it have been? Could the sheriff have applied it on said judg[630]*630ment by virtue of said execution ? (See Hill v. La Crosse Rld. Co., 14 Wis., 291; Payne v. Billingham, 10 Iowa, 363; Crocker on Sheriffs, 2d ed., § 451, and authorities cited in brief of counsel for defendant in error.)
5. Attorneys- when liable to refund for moneys received for clients. Third: We think the defendants Devenney & Green, were liable to Milhoan in this action for all moneys of Milhoan’s that remained in their hands at the time of the commencement of this suit. The parties agreed that the sheriff paid to Devenney & Green $1,554.25; that Devenney & Green paid to Mitchell $1,429.25, and that they retained $125 for their services -as attorneys. The court rendered judgment accordingly.
6. Judgment; petition; variance. In construing the petition we have examined the evidence and the findings of the court, in order to understand some obscure portions of it; and' viewed in this manner we think the petition is sufficient to sustain the judgment. The findings of the court below are sufficient, and taking P^eac^ngs an(l findings together we think they are sufficient to sustain the judgment. It is true that the judgment does not literally follow the prayer of the petition, but we think it substantially does. The variance is so slight that the plaintiff would have had the right at any time, without costs, to amend the prayer of his petition; and therefore the variance was immaterial. (Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244.) The judgment was for a small amount more than claimed in the petition, but it was for the amounts agreed upon by the parties, to-wit, $1,429.25 against Mitchell, and $125 against Devenney & Green, and therefore the variance was immaterial. The plaintiff however should have amended, his petition so as' to claim these amounts.
The judgment of the court below is affirmed.
All the Justices concurring.