Minnick v. Matchett

63 P. 276, 10 Kan. App. 177, 1901 Kan. App. LEXIS 5

• Court: Court of Appeals of Kansas
• Decided: January 1, 1901
• Docket: No. 813
• Status: Published

Opinions

The opinion of the court was delivered by

Wells, J.:

This action was brought in the court of common pleas of Wyandotte county by David F. Matchett against J. M. Minnick and Clark J. Hanks upon certain promissory notes executed by said Min-nick to the Plano Manufacturing Company. Said notes were purported to be guaranteed by Clark J. Hanks and transferred to the plaintiff. Service of summons was made in Wyandotte county on Hanks, and on Minnick in Franklin county, where he resides. On March 7, 1899, judgment was rendered therein against said J. M. Minnick alone. On March 81, 1899, Minnick filed a motion to set aside the judgment, alleging want of jurisdiction in this, that he was the only defendant liable on said notes; that the said Hanks was employed by plaintiff to indorse them solely as an excuse to bring the action in a county-other than where said defendant resided, which was in Franklin county; and that defendant did not appear at the time of trial through a mistake of his attorney as to dates. On May 1, 1899, this motion was sustained and the judgment set aside. At the September, 1899, term of said court, another judgment was rendered in the cause ; this time against both of the defendants J. M. Minnick and Clark J. Hanks. On the 14th of February, 1900, Minnick filed a motion to set aside the last-rendered judgment and to correct the journal entry of the action of the court on May 1, 1899, so as to show the dismissal of the case, which motion was, on February 17, 1900, overruled, and the case brought here for review.

There are two assignments of error made by the plaintiff in error:

“1. The court erred in rendering the second judgment against the defendant Minnick, because it had no jurisdiction over his person.

“2. The court erred in overruling the motion of the defendant Minnick to set aside the second judgment rendered against him, because said judgment was void.”

These raise but the one question of the jurisdiction of the court over the defendant, the plaintiff in error here.

We think the court had jurisdiction. The defendant Hanks appears from the petition to have been a proper defendant, personal service was had upon him in the county where the action was pending, and this gave prima facie authority for the service upon the plaintiff in error. The good faith of the suit against Hanks- was questioned by the motion to set aside the first judgment, and that judgment was vacated presumably to give the plaintiff in error an opportunity to try the issues involved. This he failed to do, and at the next term judgment was taken against both, of the defendants. So far as this case in its present condition is concerned, we must presume that the action was rightly brought in Wyandotte county. The theory of the plaintiff in error seems to be that the taking of a judgment against him and not against Hanks was equivalent to a dismissal as to Hanks, or perhaps as a finding in his favor, and therefore removed the foundation upon which the jurisdiction of the plaintiff in error was predicated. The fallacy of this proposition is in the premises. The validity of the claim against Hanks was the basis of the service upon the plaintiff in error, and when that was disputed the court properly vacated the judgment already rendered and placed the parties in a position to try that issue. This they failed to do, and upon this failure there was nothing for the court but to render judgment upon the pleadings filed. The judgment of the court of common pleas is affirmed.

McElboy, J., concurring.