Brian v. Jeffrey

Court of Appeals of Kansas

Brian v. Jeffrey

48 P. 875, 5 Kan. App. 98, 1897 Kan. App. LEXIS 502

CourtCourt of Appeals of Kansas

DecidedApril 30, 1897

DocketNo. 177

StatusPublished

Cited by2 cases

This text of 48 P. 875 (Brian v. Jeffrey) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brian v. Jeffrey, 48 P. 875, 5 Kan. App. 98, 1897 Kan. App. LEXIS 502 (kanctapp 1897).

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Opinion

Mahan, P. J.

The only question in this case presented for our decision is, whether a person other than the sheriff can serve notice of a motion to revive a [99]*99dormant judgment, under sections 428 and 440 of the Code. If we answer in the affirmative, the trial court erred and its judgment must be reversed.

Counsel for the defendant in error contend that the notice must be served by the sheriff, to give the court jurisdiction to make the order of revivor. The argument is, that section 428 says : “ Notice of the application for such order shall be served in the same manner . . . as a summons;” that this section provides hoiv the notice shall be served ; and that section 59 of the Code provides that a summons shall be directed to the sheriff, and shall command him to notify the defendants, etc., while sections 61, 63, 64, 68, 68a, 685, 68c, 68c?, 69, 70 and 71 designate how, and upon whom, it may be served.

A notice to revive is addressed to the defendants. An application for an order to revive is a motion, expressly provided for by section 582 of the Code. Section 534 prescribes what the notice of the motion shall contain, and section 535 provides by whom such notice shall be served. It says :

“ Notices of motions, mentioned in this article, may be served by a sheriff, coroner or constable, the party or his attorney, or- by any other person, and the return of any such officer or affidavit of any such person shall be proof of service,” etc.

Section 536 further provides that “ the service of a notice shall be made as is required by law for the service of a summons.” The application for an order reviving a judgment is a motion by a party to a suit, and not a new or original proceeding. The notice was in conformity with the provisions of section 534; service by a constable was a good service under section 535 ; the District Court had jurisdiction to make the order of revivor, and it was error to set it aside-The judgment is reversed.

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Mahan, P. J.

The only question in this case presented for our decision is, whether a person other than the sheriff can serve notice of a motion to revive a [99]*99dormant judgment, under sections 428 and 440 of the Code. If we answer in the affirmative, the trial court erred and its judgment must be reversed.

Counsel for the defendant in error contend that the notice must be served by the sheriff, to give the court jurisdiction to make the order of revivor. The argument is, that section 428 says : “ Notice of the application for such order shall be served in the same manner . . . as a summons;” that this section provides hoiv the notice shall be served ; and that section 59 of the Code provides that a summons shall be directed to the sheriff, and shall command him to notify the defendants, etc., while sections 61, 63, 64, 68, 68a, 685, 68c, 68c?, 69, 70 and 71 designate how, and upon whom, it may be served.

A notice to revive is addressed to the defendants. An application for an order to revive is a motion, expressly provided for by section 582 of the Code. Section 534 prescribes what the notice of the motion shall contain, and section 535 provides by whom such notice shall be served. It says :

“ Notices of motions, mentioned in this article, may be served by a sheriff, coroner or constable, the party or his attorney, or- by any other person, and the return of any such officer or affidavit of any such person shall be proof of service,” etc.

Section 536 further provides that “ the service of a notice shall be made as is required by law for the service of a summons.” The application for an order reviving a judgment is a motion by a party to a suit, and not a new or original proceeding. The notice was in conformity with the provisions of section 534; service by a constable was a good service under section 535 ; the District Court had jurisdiction to make the order of revivor, and it was error to set it aside-The judgment is reversed.

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Bluebook (online)

48 P. 875, 5 Kan. App. 98, 1897 Kan. App. LEXIS 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brian-v-jeffrey-kanctapp-1897.

Opinion

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