Dexter v. Cochran

The opinion of the court was delivered by Horton, C. J.: This action was brought in the court below to recover judgment on a promissory note, and to foreclose a mortgage given to secure the same. A summons in ordinary form in every respect, (unless as plaintiffs in error claim, the seal of the court was not thereto attached,) was issued in the action, and served upon the plaintiffs in error. Judgment was rendered on the note sued on, and a decree of foreclosure and sale allowed. Various orders of sale were issued, two appraisements were had, and the mortgaged premises sold to Orrin B. Taylor for'$1,334.33. The defendants in the court below made no appearance; but they now allege error apparent in the record, and bring the case here for review. As this court has decided “ that any error apparent in the final judgment of a district court may be corrected by suit in error in this court, although no exception was taken thereto by the party complaining, and no appearance by him at the trial and judgment, and no motion made [450] to set aside the judgment,” the case is properly here for the decision of this court. Woolley v. Van Volhenburgh, 16 Kas. 20; Zane v. Zane, 5 Kas. 134; Lender v. Caldwell, 4 Kas. 339; Koehler v. Ball, 2 Kas. 160. The first error alleged is, that the court below had no'jurisdiction of the parties defendant in said court, because the seal of the court was not attached to the original summons. Of course, if the summons was issued without a seal, it would be void, and a judgment founded thereon a nullity. Const., §1, art. 3; §59, code of civil procedure; §3 of act relating to district courts, Gen. Stat. 304; Lessee of Boal v. King, 6 Ohio, 11. But we are not satisfied from the record that the summons was not duly authenticated with the seal of the court at its date of issuance. It appears from the journal entry of the judgment that the court found “that due personal service of summons was made upon said defendants, as required by law.” This finding and adjudication cannot be ignored. Courts of general jurisdiction are presumed to have had jurisdiction until the contrary clearly appears; and every presumption is in favor of jurisdiction. Haynes v. Cowen, 15 Kas. 637; Butcher v. Bank, 2 Kas. 70. The finding and adjudication are prima facie evidence of the due and legal authentication of the summons, and the presumption thus raised is not overthrown by the fact that in the record presented no copy or mark of a seal is annexed to the summons therein set forth. Nothing is brought to this court but a transcript of the judgment and proceedings had in the cause below; and for aught that appears, the impression of the seal on the summons when affixed thereto may have been so slight as to have disappeared between the date of its issuance, Dec. 23d 1873, and the time the transcript was prepared and certified to, on September 2d 1875. "We have not the same opportunity to ascertain whether the writ was issued with a seal as the district court had. Personal inspection of the summons at the time of the hearing and determination of the matter may have established conclusively the fact that it had the seal of the court attached from which it issued. Upon [451] the finding and adjudication of the court below, and an examination of the record, we must presume that the summons served was properly sealed. The grounds for the allegation of the other alleged errors in the case, seem to us trivial and unimportant. There seems to have been some irregularity as to the return of the order of sale issued June 22d 1874, and the issuance of the alias order of sale of date of July 13th 1874. But as the sale was not made under either of these orders, no error is manifest in the confirmation of the sale made on January 15th 1875. - If we properly understand the record, the property was advertised for sale August 21st 1874, and again, October 17th 1874; and having been twice advertised and offered for sale, and not sold, said appraisement was properly set aside and a new appraisement ordered, in pursuance of § 468 of the civil code. If it be contended however, that the appraisement of June 23d 1874 was not valid, because it was not filed until November 9th 1874, then the court had a still better reason for the order directing the reappraisement of the property on November 16th 1874. The land sold consists of four hundred acres — being three hundred and twenty acres in one section, and eighty in another. But as these two pieces of land are contiguous to each other, and the judgment debtors owned the entire interest in the premises, the sale of the same in gross is not void, and the court below committed no error in its rulings. Bell v. Taylor, 14 Kas. 277. The judgment of the court below is affirmed. All the Justices concurring.