Steele v. Duncan

[515] The opinion of the court was delivered by Johnston, J.: This action was brought under §§ 568 and 570 of the civil code, to vacate a judgment alleged to have been obtained through the fraud of the plaintiffs in error* The questions in the case arise upon the ruling of the court upon the demurrer filed against the petition of the plaintiffs below. It was first contended that there was no joint cause of action in favor of the defendants below, and this is based on the statement in their petition that some of the defendants in the original action were never served with summons and made no appearance in that action, while others of the defendants were served and properly brought into court. It is said as to those who were never served, and who never entered their appearance in the case or authorized anyone to enter an appearance for them, that the judgment was absolutely void; while as to the other class, who were served, the judgment was only voidable; and so it is urged that the judgment rendered affected a part of the defendants in an entirely different manner from that in which it affected the others. It is contended that because the judgment was absolutely void as to some of them, the proper proceeding to set it aside was by a motion, under the last clause of § 575 of the civil code. It appears, however, that this proceeding was not brought under the last clause of § 575, nor were the defendants in error confined to that remedy. (List v. Jockheck, 45 Kas. 349, 748; same case, 27 Pac. Rep. 185; Hanson v. Wolcott, 19 Kas. 207.) The action is manifestly brought to set aside the judgment for “fraud practiced by the successful party in obtaining the judgment.” The allegations of fraud apply to those not served as well as to those who were served; and all of the defendants in error were affected by the fraud as alleged to have been practiced, and all are entitled to relief against the judgment so obtained. The objection of misjoinder cannot therefore be sustained. The next objection is, that the allegations respecting the fraud practiced are not sufficiently full and specific to constitute a good petition or require an answer. It is true that a [516] statement of the facts showing the fraud should be pleaded, and that mere conclusions are insufficient. It cannot be said, however, that only conclusions with reference to the fraud practiced have been set forth in the petition. It is charged that the judgment which purported to have been entered by agreement of the defendants in error was entered without their knowledge and consent, and that Steele and M. K. Sample paid $1,911 to Elizabeth Sample in order to obtain the judgment, and thus defraud the defendants in error. They denied that the papers which were filed in the case in their behalf were ever filed by them or by any person authorized to file the same, and that they never entered into the agreement recited in the journal entry to have been made between them and the plaintiffs in error. Although the allegations with reference to the fraud are not as full and specific as they might have been, they are sufficient in our opinion to overcome the demurrer. It is substantially alleged that J. M. Steele and M. K. Sample paid $1,900 to Elizabeth Sample to induce her to withdraw her claim upon the land and permit a judgment to be entered in their favor; and that they conspired together to have it appear that the defendants in error were present and agreeing to the judgment that was entered, when in fact they had no knowledge of the agreement or of the rendition of the judgment, and authorized no one to make the agreement or to consent to the judgment that was given. If the allegations made are established, it will show that a fraud was not only practiced upon the defendants in error, but also upon the court, as the judgment rendered would probably not have been given if the court had understood that all the parties were not represented and consenting. There is considerable complaint that the petition is not sufficiently. definite and certain in its allegations; but these objections cannot be cured in a review of a ruling upon the demurrer. We think the court might properly have required the defendants in error to have set o.ut copies of the pleadings upon which the judgment sought to be vacated was founded, as the pleadings may throw some light on the character and [517] effect of the judgment. The court might properly, too, have required a fuller and more detailed statement of the times and manner in which the fraud was practiced; but, as has been stated, these objections are not now available. When the case is remanded for trial, the court will have an opportunity to require the defendants in error to make their petition more definite and certain in both particulars, and in that way overcome these objections. We conclude that the demurrer to the petition was properly overruled, and therefore the ruling of the district court will be affirmed. All the Justices concurring.