Railroad Building, Loan & Savings Ass'n v. Fitzpatrick , 142 Kan. 29 ( 1935 )

The opinion of the court was delivered by

Thiele, J.:

Petitions for rehearing have been filed by both appellant and appellees. With an exception hereafter noted, the petitions present no matters which were not considered on the original submission of the cause.

Appellees urge that they were not given credit for the dividend declared July 1, 1933, in the amount of 141.50. An examination of the record shows that credit was given for that particular dividend, but we discover that the following was overlooked. Dividends were declarable on January 1 and July 1. The trial was had on October 19, 1933, but no decision was made until February 17, 1934. We held that the amount of the judgment should be computed as of the date of the judgment and not as of the date of the trial. Obviously, if a dividend was declared on January 1, 1934, there could have been no testimony with respect thereto, nor was there, by reason of the trial court’s ruling, any opportunity to present such testimony at a later date. As the stock was not canceled until the day the judgment was rendered, any dividend declared on January 1, 1934, has not been credited, in the manner provided in the by-laws, against the amount due on the mortgage.

The trial court is therefore directed to determine whether or not a dividend was declared on appellee’s stock as of January 1, 1934, and if so, to give proper credit therefor to the extent of seventy per cent thereof as provided in the by-laws, and to render judgment consistent with our opinion of April 6, 1935, as modified hereby.

The petitions for rehearing are denied.