Townsend v. Burr

Court of Appeals of Kansas

Townsend v. Burr

60 P. 477, 9 Kan. App. 810, 1900 Kan. App. LEXIS 68

CourtCourt of Appeals of Kansas

DecidedMarch 20, 1900

DocketNo. 291

StatusPublished

This text of 60 P. 477 (Townsend v. Burr) 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

Townsend v. Burr, 60 P. 477, 9 Kan. App. 810, 1900 Kan. App. LEXIS 68 (kanctapp 1900).

Pincite

Opinion

The opinion of the court was delivered by

Dennison, P. J. :

On May 18, 1893, Geo. H. Burr, one of the defendants in error, obtained a judgment against James H. Jon'es and the McKinley & Heliker Investment Company quieting his title to certain lands in Stafford county. On May 19, 1896, the plaintiff in error brought this action, and alleged among other things that he was the owner of a 'certain note and mortgage executed and delivered by said Jones to the said McKinley & Heliker Investment Company, and that the judgment against the said investment company is void. He also alleged that the defendant in error Figger had purchased the' land from said Burr, [811]*811and .that the same was conveyed to him by a good and sufficient deed of conveyance. It was alleged that the judgment is void because there was no notice to obtain service by publication upon said company as required by law. The defendants below demurred to the petition and the demurrer was sustained by the court. The plaintiff electing to stand on his petition, judgment was rendered against him for costs, and he brings the case here for review. The only service obtained was by publication, and the following is a copy of the only notice of publication ever published in the case :

“ [First published March 31.] “George H. Burr, Plaintiff, v. James H. Jones and The McKinley & Heliker Investment Company, Defendants. In the district court of Stafford county, Kansas.

“ You will take notice that on the 31st day of March, 1893, the above-named, plaintiff filed his petition against you and one James H. Jones to quiet the plaintiff's title to the following-described real estate situated in Stafford county, Kansas, to wit: Southwest quarter of section number four (4), in township number twenty-four (24) south, range eleven (11) west.

“You are hereby notified that you must answer said petition so filed.against you on or before the 15th day of May, 1893, or said petition will be.taken as true, and the plaintiff will take judgment quieting his title to said premises against-you and all persons claiming by, through or under you. You will take due notice hereof and govern yourselves accordingly.

Rose & Rose, Attorneys for Plaintiff.

“Attest: E. J. Westgate,

[VPAT 1 • Clerk of the District Court.”

It is contended by the plaintiff in error that this notice is fatally defective for the reason that it does not state the court in which the petition is filed, and therefore does not follow the requirements of section 74 of the code (Gen. Stat. 1897, ch. 95, § 74; Gen. [812]*812Stat. 1899, §4324), and that for this reason the judgment quieting Burr’s title is absolutely void and should be set aside.

We think the general allegation that there was no notice of publication as required by law is not sufficient to inform the trial court of the defect upon-which it is required to pass. The petition must state the facts constituting the cause of action. (Gen. Stat. 1897, ch. 95, §87; Gen. Stat. 1899, §4337.) An allegation that there was no notice of publication as required by law is in effect an allegation that the publication notice was illegal and not a statement of the facts constituting the illegality.

We also think that the statements in the publication notice are sufficient when construed under section 4 of the code (Gen. Stat. 1897, ch. 95, §4; Gen. Stat. 1899, § 4246.) The court and county and state are named in the heading of the notice, and the clerk of the district court attests the notice and attaches the seal of the district court thereto, and the land is described as being in said county. If we construe this statute liberally, with a view to promote its object and assist the parties in obtaining justice, we must say that if the defendant had.read the notice which was published he would have known that the petition had been filed in the district court of Stafford county, and could not have been in doubt about it.

The publication notice being sufficient, the judgment quieting title is not void, and a petition filed more than three years after the judgment was rendered is demurrable.

The judgment of the district court is affirmed.

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The opinion of the court was delivered by

Dennison, P. J. :

On May 18, 1893, Geo. H. Burr, one of the defendants in error, obtained a judgment against James H. Jon'es and the McKinley & Heliker Investment Company quieting his title to certain lands in Stafford county. On May 19, 1896, the plaintiff in error brought this action, and alleged among other things that he was the owner of a 'certain note and mortgage executed and delivered by said Jones to the said McKinley & Heliker Investment Company, and that the judgment against the said investment company is void. He also alleged that the defendant in error Figger had purchased the' land from said Burr, [811]*811and .that the same was conveyed to him by a good and sufficient deed of conveyance. It was alleged that the judgment is void because there was no notice to obtain service by publication upon said company as required by law. The defendants below demurred to the petition and the demurrer was sustained by the court. The plaintiff electing to stand on his petition, judgment was rendered against him for costs, and he brings the case here for review. The only service obtained was by publication, and the following is a copy of the only notice of publication ever published in the case :

“ [First published March 31.] “George H. Burr, Plaintiff, v. James H. Jones and The McKinley & Heliker Investment Company, Defendants. In the district court of Stafford county, Kansas.

“ You will take notice that on the 31st day of March, 1893, the above-named, plaintiff filed his petition against you and one James H. Jones to quiet the plaintiff's title to the following-described real estate situated in Stafford county, Kansas, to wit: Southwest quarter of section number four (4), in township number twenty-four (24) south, range eleven (11) west.

“You are hereby notified that you must answer said petition so filed.against you on or before the 15th day of May, 1893, or said petition will be.taken as true, and the plaintiff will take judgment quieting his title to said premises against-you and all persons claiming by, through or under you. You will take due notice hereof and govern yourselves accordingly.

Rose & Rose, Attorneys for Plaintiff.

“Attest: E. J. Westgate,

[VPAT 1 • Clerk of the District Court.”

It is contended by the plaintiff in error that this notice is fatally defective for the reason that it does not state the court in which the petition is filed, and therefore does not follow the requirements of section 74 of the code (Gen. Stat. 1897, ch. 95, § 74; Gen. [812]*812Stat. 1899, §4324), and that for this reason the judgment quieting Burr’s title is absolutely void and should be set aside.

We think the general allegation that there was no notice of publication as required by law is not sufficient to inform the trial court of the defect upon-which it is required to pass. The petition must state the facts constituting the cause of action. (Gen. Stat. 1897, ch. 95, §87; Gen. Stat. 1899, §4337.) An allegation that there was no notice of publication as required by law is in effect an allegation that the publication notice was illegal and not a statement of the facts constituting the illegality.

We also think that the statements in the publication notice are sufficient when construed under section 4 of the code (Gen. Stat. 1897, ch. 95, §4; Gen. Stat. 1899, § 4246.) The court and county and state are named in the heading of the notice, and the clerk of the district court attests the notice and attaches the seal of the district court thereto, and the land is described as being in said county. If we construe this statute liberally, with a view to promote its object and assist the parties in obtaining justice, we must say that if the defendant had.read the notice which was published he would have known that the petition had been filed in the district court of Stafford county, and could not have been in doubt about it.

The publication notice being sufficient, the judgment quieting title is not void, and a petition filed more than three years after the judgment was rendered is demurrable.

The judgment of the district court is affirmed.

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Bluebook (online)

60 P. 477, 9 Kan. App. 810, 1900 Kan. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-burr-kanctapp-1900.