First National Bank v. Kennedy

The opinion of the court was delivered by West, J.: Counsel for the appellants complains that the opinion (Bank v. Kennedy, ante, p. 51, 157 Pac. 417), referred to the amended sheriff’s return as having been offered in evidence. The counter-abstract so stated, and this was not challenged. (Civ. Code, § 576; Readicker v. Denning, 86 Kan. 79, 80, 119 Pac. 533.) Section 81 relates only to service of summons by publication and not to judicial sales. Counsel states with his usual fairness that “Had appellee offered in evidence amended return of sheriff showing the publication in each and every paper continuously from January 22 to February 23 I [478] would think there could not be any question as to its being legally published.” He adds that this was not done and that it is not claimed by the appellee that it was done. The counter-abstract was filed March 30. In his reply brief, filed April 1, counsel argued that the sheriff’s return could not overturn the affidavit of the printer, and while attention was therein called to the statement in the abstract that no further evidence than the notice of sale and affidavit was offered, still no other or direct challenge to the counter-abstract was made. The court must examine the proceedings before confirming a sale (Civ. Code, § 500), and the return is certainly a part of such proceedings. Rule 10a. of this court, considered in the cited decision in Railway Co. v. Conlon, 77 Kan. 324, 94 Pac. 148, has been superseded by Rule 5. The former opinion will be unchanged.