(concurring in part and dissenting in part): I am not unmindful of the fact that this is a partition suit and that the instant proceeding to open the judgment was brought under the provisions of G. S. 1935, 60-2530. I agree appellants filed the pleadings required by that statute to open a judgment rendered on service by publication alone. I also agree, at least on the limited record before us, that having filed the instant proceeding within the three-year period appellants could not be said to be guilty of laches.
I also agree we endeavor to determine what a trial court has done by an examination of its journal entry. However, in doing so we do not examine merely some separate recital therein but all pertinent recitals and, of course, especially the portion, or portions, of the journal entry constituting the actual judgment. The journal entry is fully set forth in the majority opinion. Notwithstanding a recital therein that the application to open the judgment should be denied I cannot agree that the journal entry, when considered in its entirety, discloses the trial court denied defendant’s motion to open the judgment for the purpose of letting them in to defend. On the contrary, it seems to me the journal entry conclusively shows the court did open the judgment for the purpose of permitting defendants to show not only that they had no notice of the partition action but also to show, if they could, that plaintiff was guilty of fraud and that the land was appraised and purchased at an inadequate price, as defendants’ application and answer alleged.
The journal entry plainly discloses not only that evidence was adduced by all parties on these questions but that the court . . being fully advised in the premises, finds . . .” Thereafter, the journal entry contains specific findings of fact adverse to the defendants touching every step in the partition proceedings. With such a journal entry of the record before us I am not willing to reverse the district court on the theory it considered only the por*78tion of the application to open the judgment and erroneously denied it.
Furthermore, the journal entry discloses the court did not hear and consider only that portion of the application which requested the court to open the judgment. It discloses the court considered and denied the portion of the application which sought to have all orders and proceedings in the partition action, including the sale, set aside. The application filed by defendants included both requests. Both requests were denied upon the evidence presented. The judgment portion of the journal entry reads:
“It is therefore by the court considered, ordered, adjudged and decreed, that the application fled 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 proceedings.” (Emphasis supplied.)
It therefore cannot be said the district court passed only on the portion of the application which sought to have the judgment opened. Moreover, defendants have expressly appealed from the judgment denying both requests contained in their application. We therefore also have before us an appeal from the judgment denying defendants* application to set aside all proceedings, including the sale. The next question is, can this court on the record before it reverse that portion of the judgment? I do not thihk so: The pertinent provisions of G. S. 1935, 60-2530 provide:
“A party against whom a judgment or order has been rendered, without other service than publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense . . . The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter affidavits to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.”
When defendants made the necessary showing under that statute, including the fact they had no notice of the action, they were entitled to have the judgment opened and to be let in to defend. They were given that opportunity and exercised it. At the conclusion of the hearing their counsel said, “I think we have no more evidence.”
*79It is my understanding of the law that on such a hearing, whether it involves a partition action, or any other action to which the statute applies, the district court is not required to set aside all proceedings, including the sale, merely because defendants had no notice of the action. In order to have the entire proceedings and sale set aside defendants were required to make some showing of prejudice resulting from their lack of notice and their consequent inability to attend or to be represented at the proceedings. In view of the findings of fact they failed to make such a showing. They took no action in the district court to set aside the findings on the ground they were contrary to or unsupported by the evidence. They in nowise challenge the findings in this court.
In the case of Martens v. Green, 113 Kan. 142, 213 Pac. 642, cited in the majority opinion, the property was sold at a grossly inadequate price. Here the evidence is ample to support the finding there was no partiality or inadequacy in the appraisement and that the property was purchased at a fair and just price in 1942. Of course, it would be quite unusual if it did not now bring more under prevailing inflated prices. Appellants did not testify if they had been present at the sale in 1942 they, or some other purchaser, would have paid more for the land. They produced no witness who testified the land was worth more in 1942 than its sale price. There was ample testimony that it was not worth more, and some testimony tending to show it was worth less, than $3,000 when sold in 1942. Appellants did not testify they would have elected to take it at the appraised value on the date of sale. In view of this record I do not think we are justified in reversing the decision of the trial court and in directing it to set aside all the orders and proceedings in the partition suit.
Thiele and Parker, JJ., concur in the foregoing partially concurring and partially dissenting opinion.