Jonsson v. Erickson

Citations

• 108 Kan. 580
• 196 P. 435
• 1921 Kan. LEXIS 227

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Opening Up Judgment — Party Deceased — No Revivor — No Jurisdiction to Open Up Judgment. Before the district court can entertain an application to open up a judgment rendered on service by publication where the plaintiff in the action has died, there must be a revivor of the judgment.</p> <p>2. Same — No Revivor of Judgment — No Valid Service of Notice to Open Up Judgment. In a suit for partition, a defendant answered that he was the only heir of his wife who in her lifetime had obtained a judgement against the plaintiffs, quieting her title to the real estate. The plaintiffs replied that the judgment upon which defendant relied was obtained on publication service only and that they had had it opened up, and at another trial judgment was rendered in their favor. The evidence showed that after the death of the plaintiff in the first action, and without a revivor of the judgment, and without any notice served in compliance with section 83 of the code of civil procedure, the district court opened the judgment and afterwards rendered judgment in favor of the parties now plaintiffs in the present action. Held, that the proceedings subsequent to the death of the plaintiff in the first suit were void because there was no revivor of the judgment,, and because there was no valid service of notice to open the judgment.</p>