dissenting: I agree with my colleagues that the evidence concerning Mr. Burke’s general or specific mental state does not support an inference that he lacked “suitable discretion” for the purpose of accepting residential service on his wife. Plence the case must be dealt with on the assumption that Mrs. Burke was properly served but defaulted.
In dealing with the 60-260(£>) aspects of her motion the majority finds she is precluded from relief because of her “inexcusable neglect.” This conclusion is apparently based only on her willingness to entrust the family’s financial affairs to a husband who is known to have a drinking problem. There are in my opinion two things wrong with this analysis:
First, I am not prepared to say Mrs. Burke’s acquiescence in a long-standing allocation of family responsibilities was “inexcusable.” There is nothing to indicate Mr. Burke had ever failed to carry out his part of the arrangement before. Certainly there is no evidence Mrs. Burke knew of any delinquency before the day the two messengers arrived, one to shut off the lights and the other to put her out in the street.
Second, and more important, I read the cases treating with excusable versus inexcusable neglect as referring to neglect of the lawsuit in question. See Jenkins v. Arnold, 223 Kan. 298, 573 P.2d 1013 (1978), and cases cited therein. Mrs. Burke cannot be accused of neglecting this lawsuit; the evidence is undisputed *450that the first she heard of it was when the deputy arrived with the writ of assistance. She immediately sought counsel and promptly filed her motion for relief.
It has often been stated that a motion under 60-260(b) is addressed to the sound discretion of the trial judge, who should have “due regard for what is just and fair under existing circumstances.” Jenkins, 223 Kan. at 299, and cases cited. In this case Mrs. Burke did not seek relief from the foreclosure, but only from the sale to the appellant (of which she had been equally unaware). She tendered, and the court ordered, repayment of the purchase price in full, interest at the market rate, and reimbursement of all expenses. Under the court’s order the purchaser would lose only the chance to make a speculative profit, while Mrs. Burke would be able to retain her home for herself and her children, and would avoid forfeiting her substantial equity in it.
It seems apparent to me the trial court in this case was swayed by the equities of the case, which were all one way, and seized upon the alleged process deficiency as a method of achieving a result which was “just and fair under existing circumstances.” Although I can’t agree with the procedural channel utilized, I believe the court arrived at the correct destination. I certainly, can find no abuse of discretion and would therefore affirm.