Anglo-American P. & P. Co. v. Turner Casing Co.
| Decision Date | 07 November 1885 |
| Citation | 8 P. 403,34 Kan. 340 |
| Parties | THE ANGLO-AMERICAN PACKING AND PROVISION COMPANY v. THE TURNER CASING COMPANY |
| Court | Kansas Supreme Court |
Error from Wyandotte District Court.
SEPTEMBER 6, 1884, the court dismissed the action at the cost of the plaintiff, The Anglo-American Packing and Provision Company. It brings the case here. The opinion states the nature of the action, and the material facts.
Judgment reversed and remanded.
Goodin & Keplinger, for plaintiff in error; Thomas P. Fenlon, of counsel.
Pratt Brumback & Ferry, for defendant in error.
OPINION
On November 27, 1883, an action was commenced in the district court of Wyandotte county, with the following title, to wit "The Anglo-American Packing and Provision Company, Plaintiff, v. The Turner Casing Company, Defendant." In the petition it was alleged that both the plaintiff and the defendant were corporations duly organized under the laws of the state of Illinois. At the same time an affidavit for an order of attachment was filed by the plaintiff, which states, among other things, "that said defendant, the Turner Casing Company, is a foreign corporation, and a non-resident of the state of Kansas." On the same day an affidavit for service by publication was also filed, which states that the defendant is a foreign corporation and a non-resident of the state of Kansas, and also that "service of summons cannot be made upon it within the state of Kansas." A summons and an order of attachment were issued in the case. The sheriff returned the summons on the same day, and in his return stated as follows: "Not served, for the reason that I could find no superintendent, manager, agent, clerk of the Turner Casing Company in my county upon which to serve the same." The order of attachment was served by seizing certain property as the property of the defendant. A forthcoming bond was then given by William Cudworth, as principal, in whose possession the property was found, and W. H. Ryus and D. R. Emmons, as sureties. Service of summons was then made by publication in a newspaper. The notice of summons published in the newspaper was entitled the same as the petition, the defendant being mentioned as "The Turner Casing Company," and then the notice stated as follows: "To the above-named defendant: You are hereby notified that you have been sued," etc. This notice did not state whether the defendant was a corporation, or a copartnership, or something else; but it required the defendant to answer on or before January 11, 1884. On January 2, 1884, an order was made by the district court, which, after a title similar to that of the petition, reads as follows: "On motion, both parties appearing, the time for defendant to plead in this case is extended, and leave given to defendant to plead on or before February 10, 1884." By a stipulation of counsel this time was subsequently extended to February 23, 1884. On February 20, 1884, the defendant filed an answer entitled as above, and containing: First, a general denial; second, a denial that the Turner Casing Company was ever a corporation, but alleging that "The Turner Casing Company was, at the dates of the transactions set forth in said petition, ever since has been, and still is, a copartnership, composed of Sigismund Oppenheimer, Julius Oppenheimer, Oscar Aberle, and Patrick A. Turner, as copartners, doing business under the firm-name and style of The Turner Casing Company, and have no power to sue, nor are they subject to be sued, by the name of The Turner Casing Company." This answer was signed by "Pratt, Brumback & Ferry, Attorneys for Defendant." This answer was verified by the oath of Sigismund Oppenheimer. On May 3, 1884, the plaintiff, with leave of the court, amended its petition by interlineation, so as to make the defendants as follows: "Sigismund Oppenheimer, Julius Oppenheimer, Oscar Aberle, and Patrick A. Turner, partners as The Turner Casing Company, Defendants," and also so as to allege that the defendants were a copartnership instead of a corporation. Pratt, Brumback & Ferry appeared "for the Turner Casing Company, the corporation as sued," and resisted the order of the court granting leave to amend, and excepted thereto. The case was then continued. On May 12, 1884, the defendants filed a motion, which, after the title, (which sets forth the names of the plaintiffs and the names of all the partners in their partnership character and as defendants,) reads as follows:
This motion was heard by the court on September 6, 1884, when the court made the following finding, to wit: "That no jurisdiction of the persons of the defendants has been obtained;" and the court on that ground decided to sustain the motion; and the plaintiff not desiring to take any further steps in the case in that court, the court then dismissed the case at the plaintiff's costs, to which ruling the plaintiff duly excepted; and to reverse this ruling the plaintiff brings the case to this court.
The action was dismissed for the reason, as the court below states, "that no jurisdiction of the persons of the defendants has been obtained." Nothing is said by the court with regard to the jurisdiction of the court over the property attached. Hence it would seem that the court below did not regard jurisdiction over the property as a material question in the case. But did the court have jurisdiction of either the persons of the defendants or their property? In the first place, the property was attached which admittedly belongs to the defendants; second, a notice in the nature of a summons was published in the newspaper addressed to "The Turner Casing Company," requiring such company to appear and answer in the case; third, there were at least six different appearances made in the case by somebody other than the plaintiff: First, when the forthcoming bond was given; second, when the time for the defendant to plead was extended; third, when the answer of the defendant was filed; fourth, when the defendant resisted the motion of the plaintiff for leave to amend its petition, and excepted to the order of the court relating thereto; fifth, when the motion to dismiss the action was filed; and sixth, when such motion was heard and sustained. The defendants, however, Sigismund Oppenheimer, Julius Oppenheimer, Oscar Aberle, and Patrick A. Turner, claim that the service of the summons, by publication or otherwise, is void; and, we suppose, also claim that the service...
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