Downing v. W. J. Gow & Bros. Mortgage Investment Co.

53 Kan. 246

• Court: Supreme Court of Kansas
• Decided: January 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

HortoN, C. J.:

It is conceded that the summons issued in this case was not served upon the defendant company. The appearance of the defendant was merely for the purpose of contesting the regularity of the summons and the alleged service thereof, and to obtain a dismissal of the action for these reasons only. This cannot be construed into a waiver of jurisdiction, or a waiver of service, or a general appearance. (Simcock v. National Bank, 14 Kas. 529; Packing Co. v. Casing Co., 34 id. 340.)

We are referred to Handy v. Insurance Co., 37 Ohio St. 366, as an authority that the motion was a general appearance. In that case the motion of the defendant involved the merits of the action as stated in the petition.

“ The true ground of objection, as raised, first by the motion, and afterwards by the demurrer [in that case], was that the defendant, upon the facts stated in the petition, was not liable to be sued in that court, for the reason that the cause of action, or any part of it, did not arise in the state, nor was the defendant a corporation of the state.”

Therefore that ease is not authority.

Again, plaintiffs claimed, before the justice of the peace, judgment for $300, with interest from August 24, 1888, aggregating over $305. The amount claimed, being in excess of $300, shows that the justice had no jurisdiction of the action. (Justices’Act, § 2; Wagstaff v. Challiss, 31 Kas. 212; Ball v. Biggam, 43 id. 327.)

The judgment of the district court will be affirmed.

All the Justices concurring.