Van Horn v. Great Western Manufacturing Co.

37 Kan. 523

• Court: Supreme Court of Kansas
• Decided: July 15, 1887
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The only thing necessary to be done in this case is to affirm the judgment of the court below. No comment is really necessary. The plaintiffs, by fraud and deceit, inveigled one of the defendants, John Wilson, into the jurisdiction of the district court of Pawnee county, for the purpose of obtaining service of summons upon him in an action intended to be brought against him and his partner, in that county. Such an abuse of judicial process cannot be tolerated in any court of justice. (Dunlap v. Cody, 31 Iowa, 260; same case, 7 Am. Rep. 129; Townsend v. Smith, 47 Wis. 623; same case, 32 Am. Rep. 793; Steel v. Bates, 2 Aikens, 338; same case, 16 Am. Dec. 720; Wood v. Wood, 78 Ky. 624; Williams v. Reed, 29 N. J. 385 ; Wanzer v. Bright, 52 Ill. 35; Allen v. Miller, 11 Ohio St. 374; Hevener v. Heist, 9 Phila. 274; Metcalf v. Clark, 41 Barb. 45; Goupil v. Simonson, 3 ; Baker v. Wales, 14 id. 331.) The decision of the court below we think is undoubtedly correct, both as to the law and the evidence. The decision was rendered upon a motion made by the defendants to set aside the summons and the service thereof. The motion was heard upon affidavits and oral evidence. The appearance of the defendants was only special, and for the purpose of the motion only. No material error was committed by the court below. The testimony of the plaintiffs’ counsel, introduced by the defendants, was properly received. It was virtually a cross-examination of the counsel with reference to matters set forth in their affidavits previously and voluntarily filed by them and their clients in the case. Besides, no proper objection was made to this testimony. The only objection that was made with reference thereto was made before the counsel were sworn, and not afterward. Also, the most of this testimony was not with reference to confidential communications made between the counsel and their clients. The evidence rejected was not offered until long after the hearing was had; and it was then offered in the absence of defendants and their counsel, and without notice to them. It was also incompetent. As the service of summons upon Wilson, in Pawnee county, was obtained wrongfully and fraudulently and must be set aside, so also must the service of summons upon Fairchild, in Leavenworth county, be set aside. (Brenner v. Egly, 23 Kas. 123.)

The judgment of the court below will be affirmed.

All the Justices concurring.