Hackney & Moore and Grant Stafford, all of Winfield, for appellant. Emory W. Earhart, of Winfield, for appellee.

DAWSON, J. This is an appeal which questions the propriety of rendering a judgment for default of an answer. Plaintiff's petition was to quiet his title to 60 acres of land. He alleged that the defendant and his wife induced him to place his mark on a blank form of deed, which they afterwards filled out, and that he was induced to do so through false and fraudulent representations by them that he was "about to be blackmailed by certain parties who designed to rob him of 60 acres of land," etc.

[1] Defendant filed a motion to make plaintiff's petition more definite in certain particulars. This motion was sustained on October 18, 1915, and plaintiff was given 20 days in which to file an amended petition, and the defendant was given 20 days thereafter in which to answer. On March 7, 1916, plaintiff was given 20 days further time in which to file an amended petition. Some time thereafter, date not shown, plaintiff made a slight amendment to his petition by interlineation, but the petition thus amended bore no mark of formal refiling, and the civil appearance docket contained no entry disclosing the fact of its refiling. Defendant's attorney withdrew from the case in November, 1916; and no pleadings having been filed by defendant after the informal amendment of plaintiff's petition by interlineation, judgment by default was entered against defendant on February 17, 1917. On May 22, 1917, defendant filed a motion to vacate the judgment because it had been rendered when the cause was not at issue, and for various other reasons, mistake, unavoidable casualty, and misfortune, etc. On June 25, 1917, this motion was heard, evidence introduced in its support, and the cause passed for further consideration, and nothing further concerning it has transpired in the court below.

The defendant assigns error in setting the cause for trial on February 17, 1917, and in rendering judgment against him on that date for default; the essential point being that the matter was not at issue, that on that date the plaintiff and not the defendant was in default, and that there was no proper

amended petition on file on which judgment could be rendered.

This court is inclined to the view that on February 17, 1917, the cause was not properly at issue. While plaintiff amended his petition informally by interlineation (and ordinarily slight amendments may be so made), that was not precisely what plaintiff had obtained leave to do. He was given time, and that time was later extended, to file an amended petition. No duty rested on defendant except to keep tab on what the docket and files in the case would fairly disclose. The docket did not show that plaintiff had filed an amended petition, and only by close scrutiny could defendant have detected an alteration in the original petition. Without notice of the amendment by interlineation, he was under no duty to concern himself further about the original petition, for its defects had been adjudicated and confessed. Defendant's attorney had retired from the case, and he had not yet procured another, but there was no need to employ another attorney until he learned or had a fair opportunity to learn that an amended petition had been lodged against him. That never occurred until after judgment. Hence the judgment by default was not timely entered, and should be set aside.

[2] The fact that the defendant sought to correct this snarl by a motion in the court below after the judgment was entered does not affect his right to appeal. The rule may be otherwise in some jurisdictions (2 Cyc. 524), but in this state, not only may judg ments, intermediate or final, be brought up for review while certain features of the cause are undisposed of below (Civ. Code, § 565 [Gen. St. 1915, § 7469]), but they must be so brought within six months, or the right of review may be lost entirely (Civ. Code, § 572 [Gen. St. 1915, § 7476]). Norman v. Railway Co., 101 Kan. 678, syl. par. 1, 168 Pac. 830; Leslie v. Mfg. Co., 102 Kan. 159, syl. par. 5, 169 Pac. 193; Smith v. Lundy (No. 21,470) 173 Pac. 275, just decided.

The judgment entered by default should be set aside, and the cause will be remanded, with instructions to that effect, and with instructions to permit defendant to plead to or join issues on plaintiff's informally amended petition. All the Justices concurring.

for $439.16 and for foreclosure of the me

In an action to foreclose a mechanic's lien, evidence is admissible to prove that material was purchased for, and was used in, the construction of improvements on the land described.

on May 4, 1917, almost a year after the ruling on the demurrer. George W. Simmons and Cora Simmons argue that the court erred in sustaining the demurrer to their amended answer. The plaintiff contends that the error, if any there was, in sustaining the demurrer cannot be considered on this appeal, for the reason that a ruling on a demurrer cannot be reviewed if an appeal from that ruling is not taken within six months thereafter. The appeal was not taken in time, and the plaintiff's contention must be sustained. Slimmer v. Rice, 99 Kan. 99, 160 Pac. 984, and other decisions there cited; Civ. Code, § 572 (Gen.

In an equitable action, it is not error for the court to strike out or disregard findings of the jury and make other findings and render judgment thereon.

Appeal from District Court, Finney County.

Suit by Fairbanks, Morse & Co. against George W. Simmons and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

H. O. Trinkle, of Garden City, for appellants. Scates & Watkins, of Dodge City, for appellee.

MARSHALL, J. Defendants George W. Simmons and Cora Simmons appeal from a judgment obtained against them, foreclosing a mechanic's lien. George W. Simmons contracted with Dennis D. Doty for the construction of a pumping plant on certain real property owned by defendants Simmons in Finney county. Doty was to receive his compensation on the completion of the plant and on its successful operation. Doty testified that he purchased from the plaintiff all the material listed in the itemized account attached to the petition; that the material was used in the installation of the pumping plant; and that he ordered the material for that plant. The amended answer of George W. Simmons and of his wife, Cora Simmons, contained a general denial, and alleged that Doty never performed his contract and never completed the plant, and that they never became indebted to Doty on the contract. The amended answer also alleged that they were damaged in the sum of $2,500 by Doty's failure to perform his contract.

[2] 2. Complaint is made of the admission of evidence. That evidence was as follows:

"Q. You had ordered material from this same concern with respect and for use in a good many other jobs too, had you? A. Yes, sir. Q. And, speaking with respect to those other jobs, state if the company kept its accounts against you separately, for each separate job? A. Yes, sir. Each job was kept separate. Q. And the goods ordered for one job were never mixed or mingled with the order for other jobs? A. No, sir."

That evidence was admissible for the purpose of showing that the material was purchased for, and was used in the construction of the pumping plant on the land of defend

ants Simmons.

[3] 3. A demurrer to the plaintiff's evidence was overruled. It is contended that the evidence failed to prove that the material was sold to Doty with the intention and understanding that it should be used in the construction of the pumping plant on the land of his codefendants Simmons. It is also contended that the evidence failed to show that the plaintiff had any notice of the contract between Doty and George W. Simmons. From these contentions, it is argued that it necessarily follows that the plaintiff sold the material to Doty on his own credit.

In addition to the evidence already set out, Doty testified that the material was ordered for this particular job, and that he thought the order for the material stated that it was to be used in the construction of the plant. As against a demurrer thereto, the evidence was sufficient to prove that the material was sold with the intention and understanding on the part of the plaintiff that it would be used in the construction of the pumping plant. It was not necessary to prove that the plaintiff had either notice or knowledge of the contract between Doty and George W. Simmons.

ory, and the court was not compelled to accept the findings. The court could make findings of its own. The court found "that the allegations of the plaintiff's petition are true, and that there is due the plaintiff, upon the mechanic's lien statement sued on herein, the sum of $439.16," and found that the amount named, with interest thereon, was a lien on the real property described in the petition.

the sum of $1,317.80. Intervening petitions were filed by parties claiming an interest in the fund. Among these John Schuetz, the father of Will Schuetz, claimed to be entitled to the fund for the reason that he was a partner of his son, and that the fund is the proceeds of the sale of the partnership property, and that his son had given him checks for the amount due him, which checks had been presented to the Farmers'

Although the assets of a firm are to be applied in paying its debts to outsiders before either partner is to receive any portion thereof, the individual creditors of a partner are not entitled to the same priority. They have a right to his individual interest only, and this is his share of what may remain after payment of the partnership debts, and after a settlement of the accounts between the partners.

2. PARTNERSHIP 208(1, 5)-GARNISHMENT INTEREST ACQUIRED-ACCOUNTING.

Where, in an action against an individual partner, the funds of the firm are garnished, the plaintiff acquires by his garnishment an interest only to the extent of the share of the debtor, which is his interest in the balance which remains after the firm's debts and the equities of partners are satisfied; and, further, where in such an action the court has before it all the parties claiming an interest in the fund, it is proper to take an account of the partnership

affairs.

(Additional Syllabus by Editorial Staff.) 3. PARTNERSHIP 20-FARM LEASE.

A father and son held partners under a written agreement in the form of a farm lease and a separate memorandum.

Appeal from District Court, Brown County.

Suit by the First National Bank of Horton, Kan., against Will Schuetz, with garnishment against the Farmers' State Bank of Germantown, and with intervening petitions by John Schuetz and others. Judgment for intervening petitioners, and plaintiff appeals from part of judgment in favor of John Schuetz. Affirmed.

W. E. Archer, of Hiawatha, for appellant. Sample F. Newlon, of Hiawatha, for appellee.

PORTER, J. The plaintiff brought suit against Will Schuetz to recover on two promissory notes. The petition was filed on the 26th of February, 1917. Garnishee summons was issued to the Farmers' State Bank of Germantown, which anwered that it had on deposit to the credit of Will Schuetz

found in favor of the intervening petitioners. This appeal is from that part of the judgment in favor of John Schuetz.

[3] Their written agreement was in the form of a farm lease by which the father rented the farm to his son for a share of the crops. The writing contained the usual covenants of a farm lease, and in addition an agreement that the landlord and tenant should each furnish cattle and hogs of equal value to be placed on the farm and cared for by the tenant, the increase to be equally divided. There was also a memorandum of a separate agreement made about the same time, by which it was understood that if either party supplied more stock in value than the other, the other was to pay him "out of his portion of the sale of the stock less 20% of his share." There is a contention that the evidence fails to show that John Schuetz and his son were partners, but we think the trial court was correct in holding that they were partners in the joint enterprise.

[1] All the property owned by the partnership was sold at public sale a day or two before this action was commenced, and the proceeds were deposited in the Farmers' State Bank in the name of Will Schuetz. The court took an account of the partnership affairs, and found that the son owed the partnership for live stock contributed by his father in excess of the amount contributed by himself, in the sum of $427.55, and that the partnership was indebted to John Schuetz to the amount of $846.01. As a conclusion of law the court held that the debts of the partnership were entitled to a priority in the proceeds of the sale as against the individual debt of Will Schuetz, and that John Schuetz's rights as a partner entitled him to judgment for the amount found to be due him from the firm. It is the plaintiff's contention that this was error. The theory seems to be that the father had a claim against the son for these advancements, but no claim against the partnership, and that the plaintiff, who was a creditor of the son, acquired a superior lien by the garnishment proceedings. But the plaintiff could acquire by his garnishment proceedings no greater interest in the proceeds from the sale of the property of the firm than Will Schuetz, its debtor, possessed.

them was able to make an agreement of purchase or exchange with the defendant. Soon afterwards an agent of Rutherford proposed to pay $17,000 for the land in cash, and an agreement was made by the plaintiff that if a sale was made on these terms he would accept $400 as his commission. A new contract of brokerage was therefore made between plaintiff and defendant on that basis. Under an agreement of sale made between Rutherford and defendant on February 17, 1915, the defendant was to prepare and furnish an abstract of title, and Rutherford was to advance $1,000, and the transaction was to be closed, and the balance due was to be paid on or before March 15, 1915, and if payment was not made when due, the $1,000 advanced by Rutherford was to be forfeited. The sale was never completed, as Rutherford failed to pay the balance due, and the $1,000 was forfeited to the defendant. There was some controversy between the parties as to whether the plaintiff was entitled to a commission for bringing Rutherford and the defendant together, and defendant, while insisting that there was no liability, did pay plaintiff $25 towards his services and expenses in the transaction. Later, and on August 5, 1915, the plaintiff brought an action against the defendant, claiming that $375 was due to him on the transaction. In the meantime some efforts were made by Rison to induce Norris to purchase the land, and negotiations were had between him and the defendant, but Rison stated in his testimony that he had told the defendant he would not expect a commission if a deal was made between him and Norris. After plaintiff's action for commission had been pending for some time conferences were had between the parties about a settlement of their differences, with the result that an agreement was reached and a stipulation was drawn up by defendant's attorney, by which plaintiff, in consideration of $125 paid by the defendant, agreed that it should constitute "a full and complete settlement of all matters and things between said parties and said sum pays said plaintiff, W. T. Lewis, in full for all services heretofore rendered as a real estate agent in the listing and attempting the sale of the 187-acre farm of the defendant, T. W. Kimball, in Salt Springs township, Greenwood county, and state of Kansas, including the commission claimed in said aboveentitled action." There was a further agreement that the action should be dismissed and the costs of the same paid by the defendant. [1, 2] Shortly afterwards the defendant made an exchange and sale of properties with Norris, and the plaintiff then went back into court and filed a supplemental petition, alleging that he was induced to sign the stipulation by the fraudulent representations of

only settlement made was for his services in the Rutherford transaction, and he also alleged fraud in concealing from him the fact that defendant had negotiated a sale or trade with Norris. The validity of the stipulation was a vital issue in the trial which followed; and, while the jury returned a verdict awarding the plaintiff $125 on the first count and $455 on the second court, the other special findings negatived the claim that there was fraud in the execution of the compromise agreement. The jury found that the defendant made no fraudulent representations to the plaintiff when the settlement was made, and another finding acquitted the defendant's attorney of the charge that he had made false and fraudulent statements to plaintiff at the time of making the agreement. They also found that in the making of the agreement neither the defendant nor his attorney had fraudulently withheld any material fact regarding the agreement. These findings determine the validity of the compromise agreement, and amount to a practical disposition of the case. The agreement was made after hostilities between the parties had begun, and after their dispute had culminated in a lawsuit. They were dealing at arm's length, and their agreement, found to be without misrepresentation or fraud, is specific and complete. The law favors the compromise and settlement of disputes; and, when parties in good faith enter into an agreement based on good consideration neither is permitted afterward to deny it. Finley v. Funk, 35 Kan. 668, 12 Pac. 15; Minor v. Fike, 77 Kan. 806, 93 Pac. 264; Kiler v. Wohletz, 79 Kan. 716, 101 Pac. 474, L. R. A. 1915B, 11.

There was a real dispute between the parties herein. It was settled by an agreement which specifically covers all the services rendered by the plaintiff in his attempts to find a purchaser for the defendant's land, including both the Rutherford and Norris transactions. Having been found to be valid and complete, the agreement must be sustained, regardless of the merits of the controversy between the parties. Whatever the plaintiff might have recovered if no compromise had been made it is clear that, when the settlement was made and stipulated sum paid and accepted, the defendant was then at liberty to negotiate a sale or exchange with Norris or any one else without liability to plaintiff.

The determination that the agreement is valid and binding upon the parties renders a number of the objections argued by the appellant immaterial. We have examined all the assignments of error, including those on the refusal of the court to submit special questions, as well as upon the instructions given and refused, and finding nothing substantial in them,

The judgment is affirmed. All the Jus