Cassell v. Cassell

The opinion of the court was delivered by Wedell, J.: This was an action to partition real estate. Service on defendants, nonresidents of the state, was had by publication. Defendants appeal from an adverse ruling in a proceeding to open the judgment of partition. Byron Cassell and Forrest Cassell were the only heirs at law of their father, who died intestate holding the fee title to the eighty acres of land involved. In July, 1942, Byron Cassell filed this suit in partition against Forrest Cassell and his wife, Rose Cassell, who resided in California. The court appointed commissioners, who found the real estate could not be partitioned in kind and they appraised the land at $3,000. All parties were given ten days to elect to- take the land at the appraised value. On November 14, 1942, appellee elected to take the land at the appraised value. The election was confirmed and he was granted thirty days within which to make the payment into court and, upon so doing, the sheriff was ordered to deliver a deed to him. On January 9, 1943, appellee advised appellants by mail concerning his purchase of the land. Appellants sent that .letter to John L. Gernon, attorney at Hiawatha. The record is silent as to whether the latter gave appellants any advice in the matter. On January 18, 1943, the clerk of the district court advised the appellant Forrest Cassell by letter that his distributive share was ready to be paid and requested instructions relative to how his check therefor should be handled. The clerk received no answer to the letter. On February 1, 1944, the clerk again wrote the appellant Forrest Cassell advising he had formerly written him and had received no reply. He again asked instructions relative to where the check should be sent. Forrest Cassell returned the last letter to the clerk, the date of the return not being disclosed, with the following statement on the reverse side of the letter: “Dear Sir: “Am.not willing to accept check, as I intend to contest partition. “Will take care of same as soon as travel cond. permit. “Yours Truly, “W. F. Cassell.” [74] Nothing further was done by appellants at that time. Appellee obtained a loan of $2,000 on the premises from the Federal Land Bank. Approximately two years after the purchase of the land by appellee, appellants on December 12, 1944, filed an application in which they requested two things. The first was that the court open the judgment and allow them to defend. The second request was that the court set aside all former orders and proceedings in the pai'tition action including the sale of the land. The application was based upon the grounds defendants had no notice of the action; plaintiff was guilty of fraud; and the land was appraised at an inadequate price. The application was supported by an affidavit of Forest Cassell and a full answer to the petition for partition was filed on the same date. The answer alleged the same defenses as were contained in the application to open the judgment and to set aside the sale and all former orders in the partition action. The application was denied. The journal entry is brief. It reads: “Now on this 23rd day of January, 1945, the same being a regular motion day of the November, 1944, term of the above entitled court, comes on for hearing the application of the defendants to open the judgment in the above entitled matter, the plaintiff appearing in person and by Robert M. Finley, his attorney, and the defendants appearing by their attorney, Walker F. Means. “Thereupon, the attorney for the defendants made an opening statement to the court on behalf of said defendants, and thereafter attorney for the plaintiff made an opening statement to the court on behalf of said plaintiff. “Thereupon, evidence was introduced by the defendants in support of their application to open said judgment, and thereafter the plaintiff introduced evidence in said matter. And the court after" hearing the evidence and being fully advised in the premises, finds that the plaintiff is guilty of no fraud and that there was no inadequacy in the appraisement or sale price of the real estate partitioned and sold in the above entitled action, and that the said plaintiff elected to take said real estate at the appraised value and said appraised price was a fair, just, and impartial appraisement of the real estate involved, in the above entitled action. “The court does further find that the defendant knew about the pendency of the above entitled action in the early part of January, 1943, within the time fixed by law for reopening judgments wherein service is procured by publication, and that said defendants were guilty of laches. “The court does further find that the application to open said judgment should be denied and the costs of said proceeding should be assessed against the defendants. “It is therefore by the court considered, ordered, adjudged and decreed, that the application filed on behalf of the defendants in the above entitled action be and the same is hereby overruled and said application is denied, and said defendants are ordered to pay the costs of said proceeding.” [75] It is from this judgment that appellants have appealed. They contend their pleadings complied fully with the requirements of G. S. 1935, 60-2530, for opening a judgment within three years when such judgment is obtained upon service by publication. They insist that a judgment so obtained is merely a conditional judgment for a period of three years and that when they have complied with the provisions of the statute the court has no discretion in the matter but must open the judgment and permit them to defend the partition action on its merits. They rely primarily upon Albright v. Warkentin, 31 Kan. 442, 2 Pac. 614; Martens v. Green, 113 Kan. 142, 213 Pac. 642; Withers v. Miller, 140 Kan. 123, 34 P. 2d 110. Appellee concedes appellants’ pleadings complied with the requirements of the statute but contend: The judgment was in fact opened and appellants were let in to defend, to adduce evidence in support of the allegations of their answer; counsel for appellants made an opening statement to the court; thereafter counsel for appellee did likewise; appellants introduced evidence on every defense alleged in their application and answer; appellee offered evidence in opposition thereto; the trial court made findings of fact on every alleged defense; a trial was had on the merits of the alleged defenses; the findings were against appellants; they are supported by the evidence and the judgment should not be disturbed. The record discloses counsel for appellants stated, “I think we have no more evidence.” Appellee also directs our attention to the fact appellants filed no motion for a new trial and in nowise indicated they desired any further hearing on the merits of the case. Appellants do not contend the findings made by the trial court are unsupported by the evidence. They do not now contend they have any additional testimony to offer in support of their alleged defenses. They rest their appeal on these grounds: Appellee knew their address in California and gave them no actual notice of the partition suit while it was pending and they had no other notice; they were entitled to be present or to be represented at every stage of the partition proceedings in order to protect their interests;' they complied, insofar as pleadings are concerned, with the statutory requirements for opening the judgment; the court should have vacated and set aside all orders and proceedings in the partition suit and its refusal to do so constituted reversible error. While it is true the trial court found from the evidence adduced appellee was guilty of no fraud, that there was no inadequacy in [76] the appraisement and that appellee elected to take the real estate at the fair appraised value, it nevertheless appears appellants had no actual notice or knowledge of the partition suit while it was pending. In Withers v. Miller, supra, a quiet-title suit, we said: “Normally, when a party in such an action moves to open the judgment, about the only questions before the court are: Has notice been given to the adverse party? Was service by publication only? Did defendant have knowledge of the action in time to defend? Has he filed an answer stating a defense? Is he willing to pay all costs, if the court requires it?” (p. 126.) In Martens v. Green, supra, a partition suit, it was stated: “It is urged by the plaintiff that the application of defendants to open the judgment and be permitted to defend should not be granted because defendants did not file a full answer as required by the statute. We are constrained to say that the verified motion sufficiently stated the necessary defense. It will be noted also that the court in its order refused defendants permission to file an answer. Moreover, a defense to a suit in partition does not necessarily mean the filing of an answer traversing the issues raised in a plaintiff’s petition. Defendants in partition may very well assent to all the plaintiff’s averments, and yet have vital interests to protect, that is, to defend at every step in the proceedings; an election to take at the appraised valuation; to see that the property brings the best possible price, even if they have to bid and buy it themselves. “The case is reversed and remanded with directions to open the judgment, set aside all orders, and permit the applicants to defend.” (p. 145.) In view of these decisions it was immaterial whether the property was fairly appraised or whether it sold at an adequate price. Appellants were entitled to have an opportunity to be present at each step of the proceedings and to bid on the property, if they desired to do so, in order to protect their interests. This opportunity they did not have. The trial court also found appellants knew of the pendency of the action in the early part of January, 1943, did nothing about the matter until they filed the instant proceedings on December 12, 1944, and were guilty of laches. The original action was no longer pending in January, 1943. The property had been purchased in December, 1942. The instant proceedings were instituted within three years after the date of the judgment and the finding of laches cannot be sustained. The journal entry clearly shows that the hearing was upon defendants’ application to open the judgment. It further shows that the court denied the application. In view of this we think the argument of appellee to the effect that the court did open up the [77] judgment lacks merit. We determine what a court does by the journal entry, which states what was done. No effort has been made by appellee to have the entry in the journal corrected. The judgment of the district court is reversed and the cause is remanded with directions to open the judgment, set aside all orders, and permit appellants to defend at every step in the partition proceedings.