Turner v. Miller

The opinion of the court was delivered by Horton, C. J.: As none of the testimony produced upon the trial is preserved in the record, the substantial question presented in this case for the consideration of the court is, whether the pleadings filed by the parties authorize the findings of the court below and the judgment rendered thereon. It is contended that no notice was given by ■Otis to his co-defendants of any purpose to establish on the trial that Wm. F. and Harriet M. Turner were principals and himself only surety upon the note, or that he would seek •equitable relief against his co-defendants. Neither of these •objections is well taken. It was not necessary that Otis should have designated his answer as a cross-petition and caused a summons against his co-defendants to be issued and served. Wm. F- and Harriet M. Turner were parties to the action, and the answer of Otis disclosed his defenses to each of the parties, and the court thereon had the power to render such judgment as the facts might require under the pleadings. When the original summons is served, the defendants are in court for every purpose connected with the action, and the defendants served are bound to take notice of every step taken therein. (Kimball v. Connor, 3 Kas. 414.) The answer of Wm. F. and Harriet M. Turner was not filed until some days after the answer of Otis, and therefore [49] they have not the excuse even of having been ignorant of its contents at the time of making their defense. Upon the question between the defendants in the court below as to surety-ship, no pleadings or other formalities were required by the code to bring the question before the court. Only the production of testimony was needed to make the fact appear. If then it was made to appear to the trial court, by parol or other evidence, that Wm. F. and Harriet M. Turner signed the note declared on as principals, and Otis as surety, it became the duty of the clerk in certifying the judgment to certify that accordingly. (Code, §470; Kupfer v. Sponhorst, 1 Kas. 75.) Counsel challenge the decision of Kupfer v. Sponhorst, supra, as one not well considered, and without authority to sustain it. To all of this it is a sufficient answer that the decision was rendered in 1862, and thereby gave a judicial interpretation to §461 of the code of 1859. In the revision of 1868, this section was readopted, and now appears in the code as §470. (Gen. Stat. 1868, p. 720; Comp. Laws 1879, p. 664.) Being readopted in the revision of 1868, the section must now be read in the light of the judicial interpretation given to it prior to its readoption. Counsel for plaintiffs in error argue that the findings are contrary to the averments of the pleadings, and assert that upon the allegations in said pleadings the note was the obligation of the copartnership, and that a part of the members of the firm could not be principals and a part surety. We do not concur in this view, as upon the allegations of the answer of Otis, if the plaintiff had not assented to the arrangements entered into between the co-defendants, and discharged Otis from all liability upon the note, the relation of' the latter to the note, as therein stated, was that of a surety. At least, if Miller does not object, the co-defendants of Otis cannot complain of the decree of the court ordering a sale of the real estate transferred to secure the note, or of the direction to the clerk in issuing the execution. Miller is the only one who can complain of the order of the court which drives him to the necessity of foreclosing the mortgage in order [50] that the surety may be protected. Yet Miller is not prosecuting any proceedings of error to this court, nor has he made any argument to us against the affirmance of the judgment below. At the hearing of the motion in arrest of judgment, and for' a new trial, the affidavit of Wm. F. and Harriet M. Turner was read, stating- that though Wm. F. Turner was a witness in the case, the defendants made no appearance on the trial,, by counsel or otherwise, and that the defendant Harriet M. Turner was not present during the trial, and also setting forth and showing the pendency of an action between Wm, F. and Harriet M. Turner against Otis for a full and complete- settlement of all matters in dispute between them, including the questions attempted to be passed upon in the trial-of this case. The trial court did not commit error in ignoring this affidavit. There was nothing in the answer of the-Turners of another action pending between them and their co-defendant Otis. If they were absent from the court at the-trial, they stayed away at their own peril. Everyone having-a matter in litigation before a- court must, in order to protect his rights, attend while the controversy is being determined. (Masters v. McHolland, 12 Kas. 17; Mehnert v. Thieme, 15 Kas. 368; Green v. Bulkley, 23 Kas. 130.) It is finally urged that there is a material variance between the relief granted and that asked. This objection is good as-to the order of the sale of lots not mentioned or referred to in-any of the pleadings. The answer of defendant Otis alleges-that his co-defendants had conveyed three hundred and twenty acres of land and one lot to secure the note; that afterward Miller reconveyed to said co-defendants one hundred and sixty acres thereof, together with the lot, and that he held-the balance as security. The court in its decree ordered the sale of the said described one hundred and sixty acres of .land, and, in addition thereto, two certain lots, viz., eight and nine,, in block fifty-four, in the city of Independence, which are not in any wise referred to in the pleadings. This part of the-judgment is erroneous. The judgment, therefore, so far as it [51] attempts to decree a sale of real estate not mentioned in any of the pleadings, is entirely outside of the case, contrary to law, and has no foundation upon which to rest. This conclusion would strike out of the judgment the order of sale of lot-s eight and nine, in block fifty-four. The case will be remanded, with direction to the court below to modify the judgment in accordance with the views herein expressed. All the Justices concurring.