[270]*270The opinion of the court was delivered by
Parker, J.
In an action to quiet title actual service of summons was had upon First National Bank in Wichita, a corporation. Service was obtained upon all other defendants by publication. Judgment by default was taken in favor of the plaintiffs. After expiration of the term 'at which it was rendered, the First National Bank in Wichita, designating itself as trustee, not a party to the action, filed an application to open- up the judgment under G. S. 1935, 60-2530, alleging that it was the successor in interest of The National Bank of C°mmerce, Wichita, trustee, one of the defendants therein. At the same time it filed its answer to the petition. The appeal is from orders made by the trial court resulting in the opening of the original judgment ,and from the rendition of a second judgment decreeing the First National Bank in Wichita, trustee, to be the owner of an undivided one-fourth interest in and to the minerals in place under the real estate described in the plaintiffs’ petition and quieting its title thereto.
Notwithstanding the scope of the appeal an examination of the record reveals the all-decisive issue involved is raised by appellants’ specification of error charging that the trial court erred in granting the application to open the judgment. For that reason,' except as it becomes necessary to pass upon other questions dependent upon its decision, this opinion will be limited to facts, portions of the pleadings and legal principles applicable to that issue.
A general summarization of the pertinent preliminary facts disclosed by the record and essential to an understanding of the issue to which we have just referred, may be thus stated: On April 3, 1918, the then owners of the real estate involved which is located in Butler county executed a mineral deed purporting to convey to The National Bank of Commerce, Wichita, trustee, its successors and assigns an undivided one-fourth interest in the' minerals in place under such land and in due time that instrument was placed of record. Thereafter, the original owners conveyed the real estate to James M. and Lola Pearl Wilson, the present plaintiffs. On January 13,1920, The National Bank of Commerce and The Kansas National Bank, both of Wichita, consolidated and formed the First National Bank in Wichita. Notice of the consolidation was filed of record in Butler county in November, 1926. February 20, 1945, [271]*271the plaintiffs instituted this action which culminated in the judgment quieting their title to the.land.- Included as parties defendant thereto were: The National Bank of Commerce, Wichita, a.corporation if legally existing and if dissolved its unknown-successors, trustees and assigns;. The National. Bank of Commerce, Wichita, trustee, if acting in that capacity and if not so acting then its .unknown successors and assigns; and First National Bank in Wichita, a corporation. As heretofore indicated service on the first two defendants named was constructive, service on the one last mentioned was actual, and all three failed to answer or otherwise plead to the petition. • :
The application to open the judgment was duly verified. With respect to the point in question it contains the following relevant allegations:
“That this applicant as trustee and successor to the rights of The National Bank of Commerce, Trustee, was not made a party defendant to this action; that it at all times maintained a place of business in Wichita, Sedgwick County, Kansas, and that no service of summons was made upon said applicant as trustee, and that this applicant as trustee never at any time had- any actual notice or knowledge during the pendency of this action that the same was pending.” I
. Particularly germane averments of the answer, attached to and made a part of- such application) read: .
“That under date of January 13, 1920, The National Bank of Commerce and The Kansas National Bank, both of Wichita, Kansas, consolidated and formed First National Bank in Wichita, and that by reason of said consolidation, First National Bank in Wichita has succeeded to all of the assets, rights, property and activities formerly belonging to the said The National Bank of Commerce. ...”
It was with facts and pleadings before it, as heretofore related, that the trial court opened the judgment and let in the First National Bank in Wichita, trustee, to defend, and thereafter rendered the second judgment to which we have heretofore referred.
At the outset we pause to observe that proceedings to open up judgments may be instituted under three sections of our statute, G. S. 1935, 60-2530, 60-3001 and 60-3007. However, in this case we are concerned with the first section only as the appellee concedes its application was filed under and its right to have the judgment opened depend upon the provisions of such section.
G. S. 1935, 60-2530, is applicable to cases where the only service upon a defendant is by publication and he did not have any actual [272]*272notice of the pendency of the action in time to appear and make his defense. Portions thereof pertinent to this appeal read:
“A party against whom a judgment or order has been rendered, without other service than publication in a newspaper, may, at any time within three years after the date of the judgment or ord$r, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; . . .”
In this jurisdiction to entitle a litigant to relief under the section just quoted there can no longer be any question but that lack of notice of the pendency of the suit in time to defend is a fundamental prerequisite and must be affirmatively established.
In Wood v. Cobe, 80 Kan. 496, 103 Pac. 101, we held:
“An indispensable prerequisite to the right to open up a judgment under section 77 of the civil code (section 83 of the new code) is that the applicant shall make it appear to the satisfaction of the court that during the pendency of the action he had no actual notice thereof in time to appear and make his defense.
“Mere oversight and inadvertence of a party in failing to make his defense at the trial of an action of which he had actual notice does not justify the opening up of the judgment under that provision of the code.” (Syl. ¶¶ 1, 2.)
To the same effect is McLeod v. Palmer, 103 Kan. 238, 173 Pac. 533, holding:
“In a proceeding to open up a judgment rendered on service by publication only, the defendant making the application, among other things, must show that he did not have actual notice of the action in time to appear and make his defense, and the fact that he was under disability by reason of confinement in the penitentiary furnishes no sufficient reason for opening the judgment if before his disability he had actual notice of the pendency of the action in time to enter his appearance and present his defense.” (Syl. ¶ 2.)
See, also Suter v. Schultz, 134 Kan. 538, 7 P. 2d 55.
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[270]*270The opinion of the court was delivered by
Parker, J.
In an action to quiet title actual service of summons was had upon First National Bank in Wichita, a corporation. Service was obtained upon all other defendants by publication. Judgment by default was taken in favor of the plaintiffs. After expiration of the term 'at which it was rendered, the First National Bank in Wichita, designating itself as trustee, not a party to the action, filed an application to open- up the judgment under G. S. 1935, 60-2530, alleging that it was the successor in interest of The National Bank of C°mmerce, Wichita, trustee, one of the defendants therein. At the same time it filed its answer to the petition. The appeal is from orders made by the trial court resulting in the opening of the original judgment ,and from the rendition of a second judgment decreeing the First National Bank in Wichita, trustee, to be the owner of an undivided one-fourth interest in and to the minerals in place under the real estate described in the plaintiffs’ petition and quieting its title thereto.
Notwithstanding the scope of the appeal an examination of the record reveals the all-decisive issue involved is raised by appellants’ specification of error charging that the trial court erred in granting the application to open the judgment. For that reason,' except as it becomes necessary to pass upon other questions dependent upon its decision, this opinion will be limited to facts, portions of the pleadings and legal principles applicable to that issue.
A general summarization of the pertinent preliminary facts disclosed by the record and essential to an understanding of the issue to which we have just referred, may be thus stated: On April 3, 1918, the then owners of the real estate involved which is located in Butler county executed a mineral deed purporting to convey to The National Bank of Commerce, Wichita, trustee, its successors and assigns an undivided one-fourth interest in the' minerals in place under such land and in due time that instrument was placed of record. Thereafter, the original owners conveyed the real estate to James M. and Lola Pearl Wilson, the present plaintiffs. On January 13,1920, The National Bank of Commerce and The Kansas National Bank, both of Wichita, consolidated and formed the First National Bank in Wichita. Notice of the consolidation was filed of record in Butler county in November, 1926. February 20, 1945, [271]*271the plaintiffs instituted this action which culminated in the judgment quieting their title to the.land.- Included as parties defendant thereto were: The National Bank of Commerce, Wichita, a.corporation if legally existing and if dissolved its unknown-successors, trustees and assigns;. The National. Bank of Commerce, Wichita, trustee, if acting in that capacity and if not so acting then its .unknown successors and assigns; and First National Bank in Wichita, a corporation. As heretofore indicated service on the first two defendants named was constructive, service on the one last mentioned was actual, and all three failed to answer or otherwise plead to the petition. • :
The application to open the judgment was duly verified. With respect to the point in question it contains the following relevant allegations:
“That this applicant as trustee and successor to the rights of The National Bank of Commerce, Trustee, was not made a party defendant to this action; that it at all times maintained a place of business in Wichita, Sedgwick County, Kansas, and that no service of summons was made upon said applicant as trustee, and that this applicant as trustee never at any time had- any actual notice or knowledge during the pendency of this action that the same was pending.” I
. Particularly germane averments of the answer, attached to and made a part of- such application) read: .
“That under date of January 13, 1920, The National Bank of Commerce and The Kansas National Bank, both of Wichita, Kansas, consolidated and formed First National Bank in Wichita, and that by reason of said consolidation, First National Bank in Wichita has succeeded to all of the assets, rights, property and activities formerly belonging to the said The National Bank of Commerce. ...”
It was with facts and pleadings before it, as heretofore related, that the trial court opened the judgment and let in the First National Bank in Wichita, trustee, to defend, and thereafter rendered the second judgment to which we have heretofore referred.
At the outset we pause to observe that proceedings to open up judgments may be instituted under three sections of our statute, G. S. 1935, 60-2530, 60-3001 and 60-3007. However, in this case we are concerned with the first section only as the appellee concedes its application was filed under and its right to have the judgment opened depend upon the provisions of such section.
G. S. 1935, 60-2530, is applicable to cases where the only service upon a defendant is by publication and he did not have any actual [272]*272notice of the pendency of the action in time to appear and make his defense. Portions thereof pertinent to this appeal read:
“A party against whom a judgment or order has been rendered, without other service than publication in a newspaper, may, at any time within three years after the date of the judgment or ord$r, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; . . .”
In this jurisdiction to entitle a litigant to relief under the section just quoted there can no longer be any question but that lack of notice of the pendency of the suit in time to defend is a fundamental prerequisite and must be affirmatively established.
In Wood v. Cobe, 80 Kan. 496, 103 Pac. 101, we held:
“An indispensable prerequisite to the right to open up a judgment under section 77 of the civil code (section 83 of the new code) is that the applicant shall make it appear to the satisfaction of the court that during the pendency of the action he had no actual notice thereof in time to appear and make his defense.
“Mere oversight and inadvertence of a party in failing to make his defense at the trial of an action of which he had actual notice does not justify the opening up of the judgment under that provision of the code.” (Syl. ¶¶ 1, 2.)
To the same effect is McLeod v. Palmer, 103 Kan. 238, 173 Pac. 533, holding:
“In a proceeding to open up a judgment rendered on service by publication only, the defendant making the application, among other things, must show that he did not have actual notice of the action in time to appear and make his defense, and the fact that he was under disability by reason of confinement in the penitentiary furnishes no sufficient reason for opening the judgment if before his disability he had actual notice of the pendency of the action in time to enter his appearance and present his defense.” (Syl. ¶ 2.)
See, also Suter v. Schultz, 134 Kan. 538, 7 P. 2d 55.
In view of the undisputed facts appearing from the record can it be said the appellee brought itself within the terms of the statute? To conclude, as we do, that the question requires a negative answer we need only to give force and effect to the allegations of appellee’s own answer. There, and we repeat for purposes of emphasis, it is stated that by reason of the consolidation of The National Bank of Commerce and The Kansas National Bank, both in Wichita, First National Bank in Wichita has succeeded to all of the assets, rights, [273]*273property and activities, formerly belonging to The National Bank of Commerce. Obviously, one of the activities of such last-named institution was the interest it had acquired as trustee under and by virtue of the mineral deed in controversy. By its own admission appellee concedes First National Bank in Wichita has succeeded thereto. The bank was personally served with summons. It had actual notice. All it needed to do was to give heed thereto and it would have immediately ascertained The National Bank of Commerce as trustee had been made a party defendant in the action and that one of the activities to which it had succeeded as a result of the consolidation was involved in the litigation. In that situation notice to the bank was all that was required. Notice to it was actual notice to the appellee and, whatever the nature of the latter’s interest in the res may have then been, or may now be, a question we are not called upon here to determine, it does not now lie in its mouth to say it had no actual notice of the action and thus procure an opening up of the judgment when the bank, which it concedes is the source of whatever title or interest it may have in that res, could not do so.
In reaching the conclusion just announced we have not been unmindful of our decision in Loan Co. v. Essex, 66 Kan. 100, 71 Pac. 268 and Phillips v. Parker, 148 Kan. 474, 83 P. 2d 709, dealing with the rule that a judgment against a' party sued as an individual is not an estoppel in a subsequent actipn in which he sues or is sued in another capacity or character. We have no quarrel with those decisions. However, they are not decisive of the present issue. The principles there announced are applied tó factual situations entirely different from the one existing in the case at bar. It does not appear from an examination of the opinion in either case that the appellate court was required or gave consideration to the right of a party to have a judgment opened up by reason of the provisions of G. S. 1935, 60-2530, under the conditions and circumstances here involved.
Having determined that appellee was not entitled to an order opening up and setting aside the original judgment in a proceeding instituted under the provisions of G. S. 1935, 60-2530, the question whether it had a full defense to the action becomes of no consequence and is not subject to review. It necessarily follows the trial court’s action in giving it consideration and in rendering the second judgment should be vacated and set aside.
[274]*274The judgment opening up and setting aside'the original judgment is reversed. The judgment rendered by the trial court subsequent to its action in that regard is set aside and vacated.
.Hoch, J., not participating.