Greenwood County Bank v. O. B. Walker Telephone Co.

Citations

• 88 Kan. 287
• 128 P. 357
• 1912 Kan. LEXIS 54

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage—By Corporation—Private Debt of President—Invalid. Upon issues between the plaintiff and an intervenor claiming a fund garnished in the action, the validity of a mortgage under which the intervenor claimed the fund was assailed. Upon a review of the evidence it is held sufficient to sustain findings that the mortgage was given by the defendant telephone company to secure a debt of its president, and not a debt of the company; that it was taken with knowledge of these facts, and is not a valid obligation of the company.</p> <p>2. Garnishment—Trial Before Judgment against Principal Defendant. Issues between the plaintiff, a garnishee,' and intervening claimants of a fund, were made up and tried and a judgment was rendered thereon, and at the same time judgment was rendered against the principal defendant which, was in default. It is held that any error in trying these issues before judgment was entered against the principal defendant was waived by proceeding to such trial without objection or request for delay.</p> <p>3. Summons—Absence from Files—Recitals of Judgment. The absence of a summons from the files after a judgment is rendered and the fact that the appearance docket does not contain an entry of the return thereon do not render a judgment void which recites that the defendant “had been duly and legally served with summons by personal service upon the president, 0. B. Walker,” and that the company is in default.</p> <p>4. Mortgage—Debt Secured, Partly Invalid—Not Void in toto. A chattel mortgage was given by the telephone company to secure a valid debt of the company, and also the individual debt of its president. It is held that the mortgage is not void in toto as matter of law, but is void if the mortgagee intended in so taking the mortgage with such excess of indebtedness included in its terms, to defraud, hinder or delay other creditors of the company. The evidence upon this question of fact is examined, and it i