Anderson v. Fraley

• Decision Date: 11 June 1892
• Citation: 30 P. 174,48 Kan. 781
• Court: Kansas Supreme Court
• Parties: JOHN M. ANDERSON v. BURCHETT & FRALEY

30 P. 174

48 Kan. 781

JOHN M. ANDERSON v. BURCHETT & FRALEY

Supreme Court of Kansas

June 11, 1892

Error from Clark District Court.

THE opinion states the case.

Judgment affirmed.

Dawson Smith, for plaintiff in error.

W. A McCartney, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is a proceeding brought to review a ruling of the district court of Clark county refusing to vacate a judgment which had been rendered in an action brought upon an arbitration bond. It appears that certain matters which were in controversy between Burchett & Fraley and John M Anderson were submitted to the decision of a board of arbitrators, mutually chosen by the respective parties, each of whom gave an undertaking binding the obligors to pay any award that might be made. The result of the arbitration was an award of $ 700.45 in favor of Burchett & Fraley, upon which judgment was entered in the district court. That award and judgment has heretofore received the consideration of this court, and its legality has been determined. (Ante, p. 153; 29 P. 315.) The award and judgment were not paid or satisfied, and hence an action was brought by Burchett & Fraley upon the arbitration bond, which had been executed by Anderson with Theis as surety. Personal service was made on Theis, and a summons was sent to Lyon county, where Anderson had resided, and placed in the bands of the under-sheriff of that county, who returned that he had served the same "by leaving a copy thereof with the indorsements thereon at the usual place of residence of the within-named John M. Anderson." No answer was filed by either of the defendants, and judgment was rendered in favor of Burchett & Fraley for $ 500, the amount specified in the arbitration bond. Within a few days Anderson appeared and filed his affidavit, and one made by another, to the effect that he did not reside in Lyon county when service of summons upon him was attempted, but that for several months before that time, and ever since, he had been a bona fide resident of Colorado. He contended that the judgment had been rendered without service or jurisdiction, and moved to have it set aside. Although no counter-affidavits or other testimony were offered by Burchett & Fraley, the court refused to vacate the judgment. If Anderson had removed to Colorado, and was a bona fide resident of that state at the time the service was...