Reynolds v. Packers' National Bank

Supreme Court of Kansas

Reynolds v. Packers' National Bank

71 P. 847, 66 Kan. 461, 1903 Kan. LEXIS 81

CourtSupreme Court of Kansas

DecidedMarch 7, 1903

DocketNo. 13,029

StatusPublished

Cited by5 cases

This text of 71 P. 847 (Reynolds v. Packers' National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Reynolds v. Packers' National Bank, 71 P. 847, 66 Kan. 461, 1903 Kan. LEXIS 81 (kan 1903).

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Opinion

The opinion of the court was delivered by

.Johnston, 0. J. :

The Packers’ National Bank of South Omaha, Nebraska, brought an action against John H. Reynolds to recover $34,521.94, and at the same time undertook to reach funds in the hands of the Missouri Pacific Railway Company by garnishment process. Reynolds could not be served with summons in Kansas; therefore, a foreign summons was issued, [462]*462a copy of which was served on him in Missouri. In his behalf a motion was made to set aside the service, mainly upon the ground that only a copy of- the summons was served. The motion was overruled, and it is contended'that the statute requires the service of the original.

There are still other objections to the service, but the status of the case is such that the ruling is not now re viewable. As the motion was denied, and the record does not show a final disposition of the case, it must be assumed that it is still pending and undetermined. In the absence of statutory authority, error will not lie from an interlocutory order. The code provides that certain enumerated orders may be reviewed without waiting for' the final determination of the case, but a ruling like the one in question is not included among them. (Code, §§ 542, 543 ; Gen. Stat. 1901, §§5019, 5027.)

If the motion had been sustained the order would have been reviewable because of its finality. Such an order, in effect, ends the proceeding and leaves nothing further for the determination of the court. (Newberry v. A. K. & C. Rly. Co., 52 Kan. 613, 35 Pac. 210.)

An order overruling a motion to quash a summons or service, however, leaves the case pending and lacks the element of finality. It is well settled in Kansas that error will not lie from such an order and that no review of the same can be had until the final judgment is rendered. (Kansas Rolling Mill Co. v. Bovard, 34 Kan. 21, 7 Pac. 622; Simpson v. Rothschild, 43 id. 33, 22 Pac. 1019; Simpson v. Stein, 43 id. 35, 22 Pac. 1020. See, also, Brown v. Kimble, 5 id. 80; Dolbee v. Hoover, 8 id. 124.)

The proceedings will be dismissed.

All the Justices concurring.

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The opinion of the court was delivered by

.Johnston, 0. J. :

The Packers’ National Bank of South Omaha, Nebraska, brought an action against John H. Reynolds to recover $34,521.94, and at the same time undertook to reach funds in the hands of the Missouri Pacific Railway Company by garnishment process. Reynolds could not be served with summons in Kansas; therefore, a foreign summons was issued, [462]*462a copy of which was served on him in Missouri. In his behalf a motion was made to set aside the service, mainly upon the ground that only a copy of- the summons was served. The motion was overruled, and it is contended'that the statute requires the service of the original.

There are still other objections to the service, but the status of the case is such that the ruling is not now re viewable. As the motion was denied, and the record does not show a final disposition of the case, it must be assumed that it is still pending and undetermined. In the absence of statutory authority, error will not lie from an interlocutory order. The code provides that certain enumerated orders may be reviewed without waiting for' the final determination of the case, but a ruling like the one in question is not included among them. (Code, §§ 542, 543 ; Gen. Stat. 1901, §§5019, 5027.)

If the motion had been sustained the order would have been reviewable because of its finality. Such an order, in effect, ends the proceeding and leaves nothing further for the determination of the court. (Newberry v. A. K. & C. Rly. Co., 52 Kan. 613, 35 Pac. 210.)

An order overruling a motion to quash a summons or service, however, leaves the case pending and lacks the element of finality. It is well settled in Kansas that error will not lie from such an order and that no review of the same can be had until the final judgment is rendered. (Kansas Rolling Mill Co. v. Bovard, 34 Kan. 21, 7 Pac. 622; Simpson v. Rothschild, 43 id. 33, 22 Pac. 1019; Simpson v. Stein, 43 id. 35, 22 Pac. 1020. See, also, Brown v. Kimble, 5 id. 80; Dolbee v. Hoover, 8 id. 124.)

The proceedings will be dismissed.

All the Justices concurring.

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71 P. 847, 66 Kan. 461, 1903 Kan. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-packers-national-bank-kan-1903.

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