Beekman v. Trower

Citations

• 82 Kan. 327
• 108 P. 110
• 1910 Kan. LEXIS 250

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Validity — Default — Amendment of Pleadings — Time of Rendition — Vacation. In an action to foreclose a first mortgage upon real estate the mortgagors and owners of the mortgaged premises and the holder of a junior lien were made parties defendant. The owners of the real estate filed as their answer to the petition a general denial, unverified. Neither the petition nor the answer stated facts which in any manner challenged or affected the interests of the other lienholder, and he did not plead in the action, but made default. Afterward the court permitted the owners of the mortgaged premises to amend their answer by alleging that .their codefendant held a warranty deed of the property but it was merely intended as a mortgage, and the debt which it secured had been fully paid and discharged; and they prayed the court to adjudge such deed to be a mortgage and cancel the same. Within six days after the amended answer was filed judgment as prayed for „ was taken, in the absence and without the knowledge of the holder of such deed. At the time the amended answer was filed and the judgment taken the defendants filing such answer well knew that the debt secured by the deed had not been paid. The holder of the deed then filed a petition stating fully the facts and asked for a new trial. A demurrer to the petition was overruled. Held, not error.</p>