Ornn v. Merchants National Bank

The opinion of the court was delivered by Valentine, J.: We would infer from the brief of counsel for plaintiffs in error that they probably do not think that there is very much in this case. They refer us to the record three times, but in no case do they give us the page. (Rule 2, 13 Kas. 5.) They refer us to the United States Statutes at Large; but .they neither give us the volume nor the page. They also refer us to “Kansas Valley Bank v. Rowell, 2 Dil [344] lon, page —.” This we have found, though the page is not given. Their first claim is, that the court below erred in rendering a judgment against Lewis Ornn, because (as they claim) he was not served with summons, and made no appearance in the case. The record however shows otherwise. A part of one of the journal entries reads as follows: “Now at this day this cause coming on to be heard upon the amended petition and proofs of plaintiff, and it appearing that service of summons has been lawfully made upon each of the defendants herein, and the parties being represented by counsel,” etc. And a part of another journal entry reads as follows: “The defendant Lewis Ornn not appearing, but being in default,” etc. Now these are findings by the court below of service of summons, and will be considered as true unless contradicted by some other portion of the record. But no other portion of the record, as brought to this court, does contradict them. We do not know that we have the whole of the record. Indeed, the presumption is pretty strong from what we have, and from the certificates of the clerk, that we have not got the whole of it. The transcript filed with the petition in error contained only the pleadings and such of the proceedings as were had by and before the court below at its September term in 1874. Afterward, and at the instance of the plaintiff in error, a copy of a summons with the indorsements thereon, and a copy of the proof of a publication service were filed in this court. But there is still nothing to show that there was not some other summons in this case, some other publication service, or some appearance by the defendant Lewis Ornn at some previous term of the court. There is nothing in fact which shows how much of'the record has not been brought to this court. There is nothing which shows upon what evidence the court below made said findings. Indeed, none of the evidence upon any subject seems to have been preserved, and consequently none of it has been brought to this court. We must therefore take the findings of the court below that there was service, and sufficient service, as [345] true. But even if the court below had made no findings upon the subject, still it would be presumed until the contrary were shown, that the judgment was rendered upon sufficient service. And the contrary could not well be shown by the record without the introduction of the whole of the record. A want of service on the defendant, or of appearance on his part, cannot be presumed merely because of the absence from the record of proof of the same, unless the whole of the record is introduced. The plaintiffs in error also, claim that the mortgage now sued on is void. They claim that it is void for the reason that it is' a mortgage upon real estate given to secure a debt concurrently created. The facts affecting this question are substantially as follows u The bank is a National Bank. Lewis Ornn owed it a large sum of money. To partially secure the payment thereof he gave a mortgage to the bank on some property owned by him in Chicago, Illinois. There was a prior lien of $2,000 on said Chicago property which Lewis Ornn agreed to pay. Five hundred dollars of the same afterward became due, and the bank, in order to save and protect its own lien on said Chicago property, and at the request of said Lewis Ornn, paid said sum of $500, and then took the note and mortgage now sued on for that amount on property situated in Crawford county, Kansas. We think the mortgage is valid. The taking of the mortgage under such circumstances was not a violation of the National Banking Law. We think the bank had a right to get all the security it could for money which it necessarily had to pay out. And therefore we do not think that the mortgage is void. The judgment of the court below is affirmed. All the Justices concurring.