Matteson v. Sweet

Citations

• 110 Kan. 50
• 202 P. 591
• 1921 Kan. LEXIS 159

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Opening Up Default Judgment — Insufficient Grounds. After lands had been advertised for sale under a judgment of foreclosure, the holder of a second mortgage, who was served with summons by publication, learned of the proceedings and paid into court the amount of the plaintiff’s judgment and costs, and plaintiff receipted for the money and recalled his order of sale.. Nearly a year later, the holder of the second mortgage on notice to plaintiff had the judgment opened, filed his cross-petition and on default took judgment foreclosing his mortgage, with an order of sale to satisfy both judgments. The land was sold and bid in by the second mortgagee and the sale was confirmed. The fee title holder had been adjudged a bankrupt and more than a year prior to the opening of the first judgment the plaintiff paid $25 to the trustee in bankruptcy and procured a quitclaim deed of the lands which he held at the time the first judgment was opened. After the sale had been confirmed, plaintiff applied to have the second judgment opened and be let in to defend and to contest the amount due upon the second mortgage and to redeem from the amount found due. On the ground that all proceedings leading up to the second judgment and sale were void for failure to give notice to the holder of the fee title of the application to open the first judgment, the court set aside the confirmation of sale and opened up the second judgment and tried out the new issues. Held, that plaintiff having notice of the action and the proceedings opening up the first judgment long after he became the holder of the fee title, it was error to set aside the confirmation of sale and to open up the second judgment.</p>