State Bank v. Gruver

Court of Appeals of Kansas

State Bank v. Gruver

51 P. 915, 7 Kan. App. 695, 1897 Kan. App. LEXIS 488

CourtCourt of Appeals of Kansas

DecidedJanuary 18, 1898

DocketNo. 168

StatusPublished

This text of 51 P. 915 (State Bank v. Gruver) 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

State Bank v. Gruver, 51 P. 915, 7 Kan. App. 695, 1897 Kan. App. LEXIS 488 (kanctapp 1898).

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Opinion

The opinion of the court was delivered by

Dennison, P. J.:

This action was commenced in the district court of Kiowa county by the plaintiff in error against the defendants in error to foreclose a mortgage upon certain lands in that county. The petition alleges the execution and delivery of the note and mortgage and a default thereon. The- answer of the defendants is an unverified general denial. Judgment was rendered for the plainiff, an order of sale was issued, and the land was advertised and sold. The. plaintiff filed a motion to confirm the sale, and the defendants filed a motion to have the judgment vacated and the sale set aside. These motions were heard by the court and the motion to vacate the judgment and set aside the sale was sustained, over the objection and exceptions of the plaintiff. The motion reads as follows :

“ Now come the defendants herein, Herman E. Gruver and Maria Gruver, and move the court to set aside, [696]*696vacate and hold for naught the judgment heretofore rendered in this action against them and the sheriff’s sale held thereunder, for the following reasons : (1) For neglect' and omission on the part of the clerk of the court and irregularities in obtaining said judgment ; (2) that said judgment is excessive and is not sustained by the petition; (3) that the pretended petition upon which said judgment was and is based does not state facts sufficient to constitute a cause of action against these defendants or either of them and to entitle plaintiff to the relief granted and the judgment rendered ; (4) for irregularities of the sheriff in making said sale and selling the property described in petition twice upon the same notice of sale ; (5) that said judgment was without jurisdiction on the part of the court to render the same, and is irregular, illegal, and void.”

The plaintiff brings the case to this court and asks for a review of the order of the trial court in sustaining the motion.

The defendants in error have filed no brief and have not pointed out to us the reasons why the trial court should be sustained. After an examination of the record, we conclude that the order was made because the attorney for the plaintiff was the only surety upon the cost bond filed therein. This will be the only question considered by us.

The defendants, by their general appearance in the case, submitted themselves to the jurisdiction of the trial court, and it is immaterial whether the cost bond filed therein is defective or void. If the bond is defective or void, the defendants should object to the jurisdiction of the court by special appearance or by a motion for additional security for costs.

The petition in this case states a cause of action. The court could not set aside the judgment because it was excessive, as the plaintiffs offered to remit all ex[697]*697cesses. There is nothing in the record to show that the land had been sold twice upon the same order of sale.

The judgment of the district court is reversed, and the case remanded with instructions to overrule the defendants’ motion to vacate the judgment and set aside the sale.

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The opinion of the court was delivered by

Dennison, P. J.:

This action was commenced in the district court of Kiowa county by the plaintiff in error against the defendants in error to foreclose a mortgage upon certain lands in that county. The petition alleges the execution and delivery of the note and mortgage and a default thereon. The- answer of the defendants is an unverified general denial. Judgment was rendered for the plainiff, an order of sale was issued, and the land was advertised and sold. The. plaintiff filed a motion to confirm the sale, and the defendants filed a motion to have the judgment vacated and the sale set aside. These motions were heard by the court and the motion to vacate the judgment and set aside the sale was sustained, over the objection and exceptions of the plaintiff. The motion reads as follows :

“ Now come the defendants herein, Herman E. Gruver and Maria Gruver, and move the court to set aside, [696]*696vacate and hold for naught the judgment heretofore rendered in this action against them and the sheriff’s sale held thereunder, for the following reasons : (1) For neglect' and omission on the part of the clerk of the court and irregularities in obtaining said judgment ; (2) that said judgment is excessive and is not sustained by the petition; (3) that the pretended petition upon which said judgment was and is based does not state facts sufficient to constitute a cause of action against these defendants or either of them and to entitle plaintiff to the relief granted and the judgment rendered ; (4) for irregularities of the sheriff in making said sale and selling the property described in petition twice upon the same notice of sale ; (5) that said judgment was without jurisdiction on the part of the court to render the same, and is irregular, illegal, and void.”

The plaintiff brings the case to this court and asks for a review of the order of the trial court in sustaining the motion.

The defendants in error have filed no brief and have not pointed out to us the reasons why the trial court should be sustained. After an examination of the record, we conclude that the order was made because the attorney for the plaintiff was the only surety upon the cost bond filed therein. This will be the only question considered by us.

The defendants, by their general appearance in the case, submitted themselves to the jurisdiction of the trial court, and it is immaterial whether the cost bond filed therein is defective or void. If the bond is defective or void, the defendants should object to the jurisdiction of the court by special appearance or by a motion for additional security for costs.

The petition in this case states a cause of action. The court could not set aside the judgment because it was excessive, as the plaintiffs offered to remit all ex[697]*697cesses. There is nothing in the record to show that the land had been sold twice upon the same order of sale.

The judgment of the district court is reversed, and the case remanded with instructions to overrule the defendants’ motion to vacate the judgment and set aside the sale.

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Bluebook (online)

51 P. 915, 7 Kan. App. 695, 1897 Kan. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-bank-v-gruver-kanctapp-1898.