Case v. Bartholow

The opinion of the court was delivered by Hojkton, C. J.: This action was brought by the plaintiff in error against the defendants in error in the court below to foreclose a mortgage on certain real estate in Johnson county, given by E. M. and M. J. Bartholow to Augusta M. Bag-well, and by her assigned to the plaintiff, on July 24th, 1875. On Jan. 1st, 1875, the said Bartholows gave a mortgage on the land in controversy, as well as on land in Douglas county, to Henry Gay for the benefit of Gilbert & Gay, which was recorded in Johnson county, January 16th, 1875, and in- Douglas county, January 26, 1875. The mortgage from the Bartholows to Mrs. Bagwell was executed November 30th, 1874, and was recorded in Johnson county, December 19th, 1874. No note or bond accompanied the latter mortgage, and it purports to have been executed to secure the payment of the sum of $2,000, due and owing to G. W. E. Griffith by M. F. G. Dyer, and for which Griffith had a lien on land conveyed by -Dyer to Bagwell, on the date of the execution of this mortgage. In the suit of the plaintiff in error to foreclose the latter mortgage, Griffith & Gay answered jointly, and among other defenses alleged the foreclosure of the mortgage of Jan. 1st, 1875, in an action commenced July 16th, 1875, in Douglas county, and thereby that A. M. and J. H. Bagwell were forever barred of all rights and equity of redemption in the premises in controversy in this case, as also the plaintiff in error, who purchased, pendente Hte. The parties waiving a jury, the case was tried by the court. The judgment of the foreclosure action in Douglas county was sustained. The principal question now is, whether this decree of the Douglas county suit is valid and binding as affecting the Bagwells ? I. Counsel for the plaintiff in error contend that the proceedings had in that court have no binding force on Augusta M. Bagwell nor James H. Bagwell, for the alleged reason that the court never acquired jurisdiction of these persons. The petition in the Douglas county case was entitled “William L. Gilbert and Henry Gay v. Elijah M. Bartholow, Mary J. Bartholow, Mary E. G. Dyer, Augusta M. Bagwell and James H. Bagwell.” Service was made out of the state on the Bagwells, under §1, ch.113, laws of 1871. The point is made that the affidavit of N. T. Stephens is fatally defective, because he states therein, as the predicate for service, that Augusta M. Bagswell and James H. Bagswell claim some interest in the subject-matter of the action, and that said Augusta M. Bagswell and James H. Bagswell are non-residents, etc.; and that service and proceedings based thereon are not binding against the Bagwells, as Bagswell is not Bag-well ; that the words are not idem sonans, and that they do not signify the same persons. The objection is not well taken. There is not the same or as much difference between “Bagswell” and “Bagwell” as between “Brimford” and “Binford,” cited in Entrekin v. Chambers, 11 Kas. 368; but, aside from the rules of the orthography and orthoepy of the two names, the additional facts in this case present a very different question from that in Entrekin v. Chambers, supra. The affidavit of Stephens correctly uses the names of the Bagwells in the title of the cause, and also in the body of the same, stating who are sued. Where the names first occur, and when they occur the second and third times, the affidavit states, “and the said Augusta M. Bagswell and James H. Bagswell.” The word said clearly shows who were- meant. The summons was directed to Augusta M. Bagswell and James H. Bagswell, but it was personally served on Augusta M. Bagwell and James H. Bagwell, on July 30th, 1875, in Kansas. City, county of Jackson, and state of Missouri*, by delivering to eacli of them a copy of it and leaving the same with them. These proceedings, if irregular, are not void, and cannot be attacked collaterally. II. It is further objected that said service is void, because no copy of the petition was served with the summons as required by section 76 of the code of 1868; that chapter 113, laws of 1876, is invalid, and said section 76 still in force. Counsel is here again at fault. Section 1, chapter 113, laws of 1871, takes the place of section 76 of General Statutes, 644, and the original section 76 is by virtue of section 16 of article 2 of the constitution repealed. Said section 16 of article 2 of the constitution of the state has been literally complied with in the passage of said section 1, chapter 113, laws 1871. The new act of 1871 contains the entire section amended and now in force, and by the concluding provision of said section 16 of the constitution, the original section no longer exists. By the amendment the old section is stricken out and the. amended section inserted, and the whole is to be treated as a. single statute. It is not necessary, as counsel argue, that the new act should repeat the words of the old section. It is sufficient if the. new act shall contain the entire section amended. Neither is it necessary that the new act should contain the words, “that the act amended be repealed.” The repeal follows by virtue of section 16 of article 2 of' the constitution. (Burgess v. M. C. & N. W. Rld. Co., 18 Kas. 53, 57; Comm’rs of Jefferson Co. v. Hudson, 20 Kas. 71, 75.) Under said chapter 113, no copy of the petition is required to be served with the summons. III. It is also objected that the decree of foreclosure did not bar or cut off the rights of Mrs. Bagwell under the mortgage of November 30th, 1874, as it was prior to the mortgage foreclosed in Douglas county, which- was executed January 1st, 1875. The petition filed by Gilbert & Gay, averred that the interest or lien the Bagwells had in the lands sought to be foreclosed, accrued subsequently to and was inferior to that of said plaintiffs. . To this petition the Bagwells had their day in court. The judgment finds.due service of summons on Mrs. Bagwell, and bars all the defendants in that suit and all persons claiming under them, or any or either of them, since the commencement of the action, from all right in the mortgaged premises, and in each and every part and parcel thereof. This included Mrs. Bagwell, and is also effective against the plaintiff in error, who took an assignment of the mortgage of Mrs. Bagwell during the pendency of said action. This instrument was non-negotiable, and was taken by the plaintiff in error subject to all the defenses against it. He stands in Mrs. Bagwell’s shoes, and is therefore bound by the decree. (Short v. Nooner, 16 Kas. 220.) That a single lien-holder has the right to bring in as parties defendant other lien-holders, and litigate as against them the validity and extent of their alleged liens, see Bradley v. Parkhurst, 20 Kas. 462. The judgment of the district court will be affirmed. All the Justices concurring.