Mendenhall v. Robinson

[636] The opinion of the court was delivered by Allen, J. : The question discussed at length in the brief for the plaintiff in error is not presented by the record before us. The extent of the personal liability incurred by A. Gertrude Robinson to the plaintiff by giving a bond to pay the debts and legacies due under the will of her deceased husband might have been determined when this action'was tried on its merits, if the petition had contained proper averments charging a personal liability ; ■ but the petition contained no such averments. Judgment was asked and rendered against A. Gertrude Robinson in her representative capacity only. There was no personal judgment asked or rendered against her-, and the representatives of her personal estate are not the proper parties against whom a revivor may be had. (Insley v. Shire, 54 Kan. 798.) Whether the facts we have stated disclose a personal liability against P. K. and Roy M. Robinson for the full amount of the indebtedness of M. L. Robinson to the plaintiff, which might be' -enforced in an action brought for that purpose, we need not now determine, because the record does not raise the question. In passing on the motion, the court made no special findings, but determined that the order of revivor ought to be set aside. We might perhaps with entire propriety rest- our affirmance of the order on the ground that no notice of the application to revive had been given. We think the consent to a revivor, given by an attorney without express authority from his client, ought not to preclude the client-from a hearing on the merits of the application, and especially so where the authority of the attorney to act at all in the matter is doubtful. Affirmed. All the Justices concurring.