Boston Loan & Trust Co. v. Organ , 53 Kan. 386 ( 1894 )

The opinion of the court was delivered by

JohNSTON, J.:

The steps taken to vacate the judgment of January 6, 1890, and to dissolve the attachment lien upon the real estate in question, may have been somewhat irregular, but no objections were made upon the ground of irregularities. If the judgment was wrongfully obtained against Kenyon, he was entitled to have it set aside, and to be let in to defend against the attachment proceedings which the plaintiff had instituted. Instead of proceeding to set aside the judgment, Kenyon intervened with an interplea, setting up his interest in the land as though the judgment had not been rendered. The plaintiff answered the interplea, setting forth the judgment, and Kenyon, in his reply to that answer, alleged the invalidity of the judgment, and set forth the reasons why it should be annulled. All the questions were then before the court, and, as the issues were finally joined, it was authorized in trying the questions that were submitted and decided.

1' judgment-wawer'oNb It is said that the court was not justified in inquiring whether the judgment had been wrongfully obtained, because the reply of Kenyon was not verified, and for the further reason that it did not set forth the judgment sought to be vacated. The absence of a verification or the sufficiency of the pleadings was not brought to the attention of the district court, but the plaintiff proceeded to trial on the merits as though the reply was sufficient and the issues properly closed. Under these circumstances, the objection is raised too late, and a verification to the reply must be deemed to have been waived. As the judgment sought to be vacated was set out in the answer filed by plaintiff to the interplea, a repetition of the same in Kenyon’s reply was not necessary.

2‘heldsSt-’ The objection that there is a lack of fullness and certainty-in the allegations of Kenyon’s pleadings cannot be sustained. No motion or demurrer was directed against them, nor were they attacked upon those grounds until after the judgment was rendered. The pleadings, taken together, show the judgment complained of, the grounds for vacating the same, and the defense which Kenyon had to the attachment and garnishment proceedings, and are sufficient to meet the objections which are now made. While the testimony is conflicting, it appears to be sufficient to warrant the court in setting the judgment aside and allowing Kenyon to come in and resist the proceedings taken against him and his property. The order of attachment was not issued until more than five months after the affidavit for attachment was filed, and Kenyon was not made a party to the attachment proceedings. It is true he was garnished, and that after his answer he was notified that plaintiff took issue upon the answer, but after that time his deposition was taken by plaintiff’s counsel, when, as he states, he was informed that his connection with the matter was at an end, and no other or further answer would be required. At the time the garnishment proceedings were had, no service had been obtained upon the defendants in the action, nor were any steps taken to obtain service until after October 25,1889, when service by publication was obtained upon Organ and ■“Wharton. When the matter was brought up for final disposition, on January 6, 1890, no judgment had been obtained against Organ and Wharton in the principal action, and even then, if Kenyon had not been misled, he had a right to assume that no trial of the garnishment action would be had until the plaintiff had obtained judgment against the defendants in the principal action. (Gen. Stat. of 1889, ¶ 4293.) The entry of judgment shows a trial against the defendants, and the garnishee was had at the same time, and, strangely enough, a personal judgment for the full amount of the debt of Organ and Wharton was rendered against Kenyon. Under all the circumstances, we think justice required the reopening of the judgment, and that the court committed no error in making that order.

' discharge of garnishee. The next contention is, that the court erred in dissolving the attachment and in discharging the garnishee. It appears that Wharton was indebted to Kenyon in a large amount, some of which was secured by mortgages on Wharton’s land. Wharton, being unable to meet his obligations, conveyed the mortgaged land to Kenyon in part satisfaction of the debt. The debt which he owed to Kenyon was undoubtedly bona fide, and it is clear that the transfer of the real estate in satisfaction of the debt was made in good faith. The undisputed testimony is, that the land so transferred, when justly valued, falls far short of being sufficient to discharge the indebtedness. There were prior liens existing against some of the land conveyed to Kenyon, which he was obliged to pay in order to protect himself, and, as to some of the land which was attached, it appears that Wharton never had any interest therein. It is clear from the testimony that Kenyon was not indebted to Wharton, and that he could not be held liable as a garnishee. From some of the testimony in the case, it appears that there was an understanding between Kenyon and Wharton that if the former could obtain more for the property than the amount of the indebtedness against it, the surplus should be paid to Wharton. In this respect, the deeds transferring the property may be treated as mortgages, and if the property conveyed exceeded in value the amount of the indebtedness, the plaintiff would be entitled to the surplus upon its garnishment and attachment proceedings. The testimony, however, which is not denied, is to the effect that the property conveyed to Kenyon is wholly inadequate to discharge the indebtedness due to Kenyon, and a sale of the same under the attachment proceedings would yield nothing to the plaintiff, and serve no beneficial purpose. The legal title to the land is in the garnishee, and why should the expense of a sale be incurred when it is conclusively shown that no attachable interest remains in the land to sell? If the plaintiff had shown that any interest remained, however small, beyond what was necessary to satisfy the demand | of the garnishee, it could have been subjected to the payment of plaintiff’s claim. No attempt was made by plaintiff to show the existence of any excess, and, in view of the undisputed testimony upon this question, we g x * x x 1 think the plaintiff was not prejudiced by the ruling of the court discharging the garnishee and dissolving the attachment.

The judgment of the district court will be affirmed.

All the Justices concurring.