Green v. Green

42 Kan. 654

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The first question we are called upon to consider is, whether the motion which was filed by Oliver Green on October 3, 1887, and decided October 12,1887, was a special or general appearance in the action. If the appearance of a party, though called special, is upon other than jurisdictional grounds, it is a general appearance. (Burdette v. Corgan, 26 Kas. 104.) So, if a motion contests the service only and does not go beyond jurisdictional grounds, it is a special or limited appearance. The motion was presented to set aside the judgment of October 1, 1887, on the ground solely that no proper service had been made upon the defendant. By the motion, the defendant, Oliver Green, made a special appearance only. This motion did not give the court jurisdiction over the person of the defendant, nor authorize the court to require him to answer or plead. When the plaintiff, Harriet F. Green, obtained her judgment on the 16th day of January, 1888, there was on file in the district court, among the papers of the cause, the affidavit of C. M. Welch showing that the firm of Messrs. Welch & Welch had no authority from Oliver Green to appear generally for him, and that their authority in the case was limited to the special motion filed. It is true that the attention of the district court was not called to this affidavit, but that was not the fault of the defendant. Harriet F. Green might have called the court’s attention to this affidavit. She took her judgment at her peril, and as the district court had no jurisdiction over the person of the defendant, the judgment is void and must be set aside. (Reynolds v. Fleming, 30 Kas. 106.) In that case it was said:

“In this state it is held that a judgment rendered without jurisdiction is void; that a personal judgment rendered without notice to the defendant is rendered without jurisdiction, and is consequently void; that a judgment void for want of notice may be set aside, on a motion made therefor by the defendant ; and that this may be done in cases where it requires extrinsic evidence to show the judgment was rendered without notice and without jurisdiction.”

As to what constitutes a special appearance, see Branner v. Chapman, 11 Kas. 118; Simcock v. National Bank, 14 id. 529; Bentz v. Eubanks, 32 id. 321.

The judgment of the district court will be set aside, and the case remanded for further proceedings.

All the Justices concurring.