Drury v. Drury , 141 Kan. 511 ( 1935 )

The opinion of the court was delivered by

Burch, J.:

The appeal is from a judgment transferring a lien for alimony from one piece of property to another after expiration of the term' at which the original lien was created. .

In an action for divorce commenced by plaintiff,-Frank Drury, against his wife, Leota Drury, a divorce was granted to defendant. Defendant-was awarded alimony and an attorney, fee in .the sum of $1,050.- Plaintiff was the owner of lots on Holyoke avenue, in the city of Wichita. The award of alimony and attorney fee was- made a lien on those lots, which were adjudged to bé plaintiff’s solé and separate property, subject to the lien. Plaintiff was also the owner of lots on south Market street, and lots on Lawrence avenue. Those lots were adjudged to be the sole and separate property of plaintiff, free from any right or interest of defendant.

Defendant undertook to enforce her lien on the Holyoke avenue lots and, pursuant to order of sale, the lots were sold for $750. Defendant was the purchaser. The lots were mortgaged, the costs-which defendant would be obliged to pay were $150, she had no* ■ money, she could not borrow money, and she could not make her bid good. The sheriff made return of no sale.

The judgment for alimony and for lien on the Holyoke avenue lots was rendered on April 11, 1933, at the April term of the district court. The term expired on October 2, 1933. On August 11, defendant filed a motion describing her plight, and praying that her position be strengthened by giving her a lien on lots other than the Holyoke avenue lots. The motion was not disposed of at the April term. On January 3, 1934, the court modified the judgment by transferring the alimony lien to the south Market street lots.

The judgment of January 3, 1934, was void. (J. B. Colt Co. v. Clark, 125 Kan. 722, 266 Pac. 41.) A contention the subject has become moot is without merit.

The judgment of the district court is reversed, and the cause is remanded with direction to set aside the judgment.