Walkenhorst v. Lewis , 24 Kan. 420 ( 1880 )

The opinion of the court was delivered by

Brewer, J.:

Defendant in error was plaintiff in the court below, and in 1875 obtained a judgment of foreclosure of a mortgage deed, an order of sale of the mortgaged premises, and became the purchaser of the same at the sheriff’s sale, took possession thereof, and was in possession by tenant when in 1879 the defendants, plaintiffs in error, filed their motion to vacate and set aside the judgment and sale as void. The only service upon defendants in the original action was by publication, and they made default, but afterward appeared specially and moved the court to set aside the judgment as void, for reasons, among others, that the petition of plaintiff did not state facts sufficient to confer upon the court jurisdiction to render the judgment; for misnomer of minor defendants, for whom no guardian ad litem was appointed; and because no service upon the minor defendants was made as required -by law. Notice of this motion was served upon L. W. Keplinger, who was plaintiff’s attorney of record in the action. To this service plaintiff appeared specially by-his attorney, Keplinger, and moved to set it aside as 'unauthorized and insufficient. The court overruled his motion, to which he duly excepted.

It may be premised that this motion was not made under § 77 of the code, for the opening of the judgment and leave to defend. The time for such a motion had passed. Butthe judgment was challenged as absolutely void, and the proceeding was under the last clause of § 575 of the code. Now the district court unquestionably had jurisdiction of the subject-matter of the action, the foreclosure 'of a mortgage, and if it also had jurisdiction of the parties, its proceedings and judgment were not nullities, even though many errors were apparent on the face of the record. (Burke v. Wheat, et al., 22 Kas. 722; Bryan v. Bauder, 23 Kas. 95; Hodgin v. Barton, 23 Kas. 740.) The petition alleges that H. Walkenhorst and Wilhelmina Walkenhorst, to secure a debt which they owed to one Schultz, gave to him a deed of a certain tract of land, describing it, and at the same time received back a bond to convey upon the payment of this debt. Copies of the deed and bond are attached, and it appears that the latter ran to H. Walkenhorst alone. The petition alleges default in payment, and that- Shultz assigned and transferred to plaintiff all his rights and interest in said contract and land. The assignment was upon the bond, and read simply that Shultz “hereby transfers and assigns to J. TI. Lewis, all my right, title and interest in and to the within land.” The petition then further alleges the death of JEL Walkenhorst, and that the defendants are his only heirs. It prays a personal judgment against Wilhelmina Walkenhorst, that the deed and bond be treated as a mortgage, and for a foreclosure and sale.

Two objections are made to this petition. It is said that the petition fails to show any personal indebtedness of, while it claims a personal judgment against, Wilhelmina Walkenhorst, and this because the bond to reconvey runs to H. Walkenhorst alone. But the petition alleges that to secure a debt which they owed, they conveyed, etc. Now we know of no reason why husband and wife may not be jointly indebted, or why the election of the parties that the reconveyance shall be to one alone, disproves the fact of such joint indebtedness. We think the petition not only not open to objection on this ground now, but that it should have been sustained if it had been attacked at the time by demurrer. But suppose no personal judgment was permissible under the pleadings: would the decree of foreclosure and sale be thereby rendered a nullity? Is it the intention of §399 of the code to prevent foreclosures without a personal judgment against some party? If the mortgagor be deceased, cannot the mortgage be foreclosed without the appointment of an administrator?

Again, it is objected that the assignment is insufficient, and that Shultz, the assignor, was a necessary party defendant. The assignment, it is said, does not transfer the legal title, and that it still remains in Shultz. But equity which .treats the original transaction as a mortgage, although the legal form is that of a conveyance and a bond in return, equally regards an assignment as sufficient to transfer the mortgagee’s interest. Even if Shultz were a necessary party, a defect of parties, if not raised by demurrer or answer, is waived. It seems to us that, so far from this petition being fatally defective, if it had been challenged after default and- before judgment, it must have been sustained. Of course, then, there can be no doubt that it contained enough to challenge judicial action; and the judgment .founded upon it, if the court had jurisdiction of the parties, is not a nullity.

We pass, then, to the question of service. This was by publication. The regularity of the publication proceedings is not challenged, but the claim is that as to certain of the defendants, they being minors, such a manner of service is unauthorized. We do not so understand the statute. We suppose that a non-resident minor may be served by publication as well as a non-resident adult. The statute says that “The manner of service may be the same as in the case of adults.” (Code, § 71.) We suppose this to apply to constructive as well as actual service. We are not at liberty to consider objections to the service not presented to the district court, in the motion whose review is sought by this proceeding in error. Of course, if any defendant was not named in the publication notice and not otherwise served, the judgment has no effect upon his rights of interests in the property.

It is also insisted that the judgment is void, at least, as to the minor defendants, because no guardian ad litem was appointed to protect their rights, and no answer filed for them. This objection also we think untenable. By the service, jurisdiction over the persons of the minors is secured. The appointment of a guardian ad litem is a step, a proceeding in the case possible only after jurisdiction is acquired. An appointment before that would- be a nullity. But if it be something which may be done only after jurisdiction be acquired, then an omission of it is not a jurisdictional defect, but an error in the proceedings. Such an error may be a ground for reversal, but does not -render the proceedings and judgment nullities. Nor does/such a ruling destroy any substantial rights of the minor. Under §§ 413 and 568, he may have any errors in the judgment corrected at any time within one year' after becoming of age, but if there be no errors,, and his rights have been fairly adjudicated, why should he be per- • mitted to treat the whole.proceeding as a nullity? A party may not always know the exact ages of the various defendants. The court may be misinformed by the testimony as to ages. Do the validity of the whole proceeding, and all rights acquired upon the faith of such validity, hinge upon the fact whether the plaintiff and the court were correctly advised of the ages of the defendants? The authorities almost uniformly hold in accordance with the views herein expressed. See ámong others, Bloom v. Burdick, 1 Hill, 130; Freeman on Judgments, §151; McMurray v. McMurray, 66 N.Y. 175; Porter v. Robinson, 3 A. K. Marshall, 253, also reported in 13 Am. Dec. 158, to which is added a note with a citation of many authorities.

There being no other question requiring notice, the judgment will be affirmed.

All the Justices concurring.