Chumos v. Chumos

Citations

• 93 Kan. 33
• 143 P. 420
• 1914 Kan. LEXIS 377

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Judgment for Alimony and Adjusting Property Rights — Death of Divorced Wife — Revival of Judgment by Executor. In a divorce proceeding a judgment was rendered in favor of the wife, giving her the custody of the children and adjudging that she and the children be given a certain sum as alimony, payable in installments, and that certain personal property of her own should be restored to her. She removed to another state and took one of the children with her, as she was permitted to do under the judgment, and she died while living there. Some of the payments of alimony which had accrued had not been paid. A court of that state appointed an executor of her estate and some one else as guardian of the child. Subsequently the child was taken out of the country, and this was done with the knowledge and consent of the executor of her estate. It is held that the executor of her estate was entitled, upon a proper application, to have the judgment in the divorce proceeding awarding alimony and adjusting the property rights of the deceased wife revived.</p> <p>2. Same — Executor—No Custody nor Control Over Minor Children. As the executor was not the guardian of the child nor responsible for its custody and care the fact that he may have had knowledge of or given his consent to the removal of the child from the country is not a sufficient ground for refusing his application for a revival of the judgment.</p> <p>3. Revivor op Judgment — No Discretion with the Court. The right to revive a judgment in the name of the representative of a deceased judgment creditor is not a matter of discretion with the court, but when an application by a proper party is made in due form and within the time prescribed by statute the order of revivor must be granted as a matter of right.</p>