(dissenting): I dissent from ¶¶ 2 and 3 of the syllabus and the corresponding portions of the majority opinion. In my judgment, counsel for Dearborn was properly served with notice of Neel’s motion for judgment on the pleadings September 15, 1956, *605when Neel’s counsel filed that motion and duly enclosed a copy together with his letter of transmittal in a stamped envelope addressed to counsel of record for all adverse parties and deposited the same in the United States mail at McPherson (Phelps v. Schmuck, 151 Kan. 521, 100 P. 2d 67). Rule 45 of this court states that a motion shall stand for hearing at the first motion day following the fifth day after the -filing of the same and service of copy as provided in Rule 44. Rule 44 of this court provides that counsel filing a motion shall, on the day the same is filed, deliver or mail a copy to counsel of record for all adverse parties. Clearly, those rules emphasize the filing of the motion and service of copy on the date the same is filed, by personal delivery or by mailing a copy to counsel of record for all adverse parties.
In my opinion counsel for Neel complied with those rules on September 15, 1956, and the period when Neel’s motion stood for hearing should be calculated from that date. In other words, five full days elapsed between the service of copy of that motion on September 15, 1956, and the entry of judgment on September 21, 1956.
With respect to when service of a pleading is complied with, we held in Phelps v. Schmuck, supra:
“Rule 44 of this court, which requires that counsel filing a pleading subsequent to the petition ‘shall, on the day the same is filed, deliver or mail a copy thereof to counsel of record for all adverse parties,’ is complied with where counsel duly enclose a copy of the pleading filed in a stamped envelope addressed to counsel of record for the adverse parties and deposit the same in the United States mail. The adverse party is not relieved from legal effects following the filing of such pleading on a mere showing her counsel did not receive the copy mailed to him.” (Syl. f 1.)
The rule announced in that holding is applicable to motions and demurrers.
While counsel of record for Neel failed to call the district court’s attention to the material issue of fact raised by Astle’s answer, which rendered the motion for judgment on the pleadings improper (Buechner v. Trude, 175 Kan. 572, 574, 266 P. 2d 267), the judgment rendered was, from that standpoint, erroneous and could only be corrected upon appeal. But, Dearborn took no appeal.
I would reverse this case on the grounds that judgment was properly entered September 21,1956. However, I am of the opinion that the judgment rendered against Dearborn in the amount of $1,044.70 was void as being beyond the issues of the pleadings since Neel’s *606cross-petition failed to allege a cause of action against Dearborn for affirmative fraud. Judgment was rendered against Dearborn on the basis that it “knew or should have known” of the fraud Neel alleged was committed by Astle and his salesman. There were no allegations in Neel’s cross-petition that Dearborn conspired with Astle to defraud him, or that Dearborn participated in the fraud, or that Astle was Dearborn’s agent to commit the fraud. Consequently, the mere allegation that Dearborn “knew or should have known” of the fraud perpetrated was insufficient to raise a justiciable issue against Dearborn (37 C. J. S., Fraud, § 61 a, p. 346; Hewey v. Fouts, 92 Kan. 268, 140 Pac. 894, 8 JBK 396), and a judgment rendered outside of issues before the court is void (Gille v. Emmons, 58 Kan. 118, 48 Pac. 569; Southern Kan. Stage Lines v. Webb, 141 Kan. 476, 41 P. 2d 1025).
The written purchase agreement was a nonnegotiable instrument (General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 218 P. 2d 181) since title to the tractor remained in the seller until paid for. Dearborn took that contract subject to any defenses which might be asserted by Neel against Astle. In view of those facts, it was proper for Neel to use the fraud alleged against Astle and his salesman as a defense against Dearborn’s claim against him, and the judgment entered in favor of Neel offsetting the amount of Dearborn’s claim was properly entered.
Wertz, J., concurs in the foregoing dissent.