Ass'n v. Lemke

Decision Date06 October 1888
Citation40 Kan. 142,19 P. 337
CourtKansas Supreme Court

Error from Leavenworth District Court.

ACTION brought by Lemke to recover judgment against the plaintiffs in error for $ 5,262, and costs, which the plaintiff claimed was due her from the defendants, plaintiffs in error, upon a policy of insurance issued by the Kaw Life Association, to Augustus Lemke, in Leavenworth county, and also upon the bond executed by the defendants other than the Kaw Life Association, in the sum of $ 50,000, to the state of Kansas for the faithful performance of the duties of the officers of the Kaw Life Association, that they would faithfully perform all the duties, and pay over all moneys to the parties to whom they belonged, and comply with all contracts with its policyholders. On this petition a summons was issued to the sheriff of Leavenworth county, and was served upon one Grant S. Hamilton, who was claimed to be the managing agent of the defendant company in Leavenworth county, and a summons was issued to the sheriff of Wyandotte county, and served upon one E. E. Penn, as cashier of the defendant company, and also a summons was served upon the other defendants in the various counties of this state. The answer-day fixed in the summons was the 3d day of October, and upon default being made by the defendants, the case was set for trial for the 7th day of October. The case was not reached at that term, and the court adjourned until the 1st day of November, on which day this case was again set for trial, for the 3d day of November 1886, and on said day a judgment was rendered against the Kaw Life Association and the other defendants for $ 5,000 and interest thereon, and for costs. Afterward the defendants filed their motion in the district court to vacate and set aside the judgment for the reasons: First, that the court had no jurisdiction to render said judgment against the defendants, for the reason that said defendant, the Kaw Life Association, had not been served with summons as required by law, and that the said Hamilton and Penn were not officers of the defendant company upon whom service of summons could be made; second, that the plaintiff's petition did not state facts sufficient to constitute a cause of action against the defendants; and third, that the judgment was irregular as to said defendants on said bond, for the reason that the judgment was not rendered against them as sureties but as principals. And the defendants alleged that they had a good defense to said cause of action, and that they were willing and offered to pay the amount collected and due plaintiff being the sum of $ 566.73, and to permit judgment against them for that amount. This motion came on to be heard evidence was introduced, and the motion submitted to the court. The court overruled the motion except as to the defendants A. M. Scott and Grant S. Hamilton, and as to them the court held that the service was bad, and as to them sustained the motion. To review the overruling of this motion as to the rest of the defendants, the case is brought to this court.

Judgment affirmed.

Warner, Dean & Hagerman, for plaintiffs in error.

L. B. & S. E. Wheat, for defendant in error.

CLOGSTON C. All the Justices concurring.



Plaintiffs in error now insist that the court had no jurisdiction of the defendants, or any of them, for the reason that they all resided out of Leavenworth county, and that as the court held the service as to Grant S. Hamilton void, there was no valid service upon any of the defendants. The defendant in error contends that the service upon the corporation in Wyandotte was a good service; that as the policy of insurance was issued to Lemke in Leavenworth county, the premiums paid in Leavenworth county, and the policy delivered there, and that Lemke died in Leavenworth county, the cause of action, or some part of it, arose in that county, and under §§ 42 of the code of civil procedure this service would be valid. But as the question of service is not an important one as we view it, we shall not decide this question; for whatever the service was, it was cured by the appearance of the defendants after the judgment was rendered in the cause. By their motion to set aside the judgment, said motion being upon jurisdictional as well as non-jurisdictional grounds, they waived the question of jurisdiction, and made the defendants parties to the action; and this waiver binds them to that judgment as though they had voluntarily appeared at the trial. This question has been fully settled by this court. In Burdette v. Corgan, 26 Kan. 102, 104, Mr. Justice BREWER said:

"In the first place, we remark that this appearance by the motion, though called special, was in fact a general appearance, and by it this defendant appeared so far as she could appear. The motion challenged the judgment not merely on jurisdictional, but also on non-jurisdictional grounds and whenever such a motion is made, the appearance is general, no matter what the parties may call it in their motion. Such a general appearance to contest a judgment on account of irregularities will, if the grounds therefor are not sustained, conclude the parties as to any further questioning of the judgment. A party cannot come into court, challenge its proceedings on account of irregularities, and after being overruled, be heard to...

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  • State ex rel. Bulger v. Southern
    • United States
    • Missouri Supreme Court
    • June 14, 1919
    ... ... Galloway, 3 Neb. 215; Fitzgerald v ... Fitzgerald, 137 U.S. 98, 34 L.Ed. 608, 11 S.Ct. 36; ... Crawford v. Foster, 84 F. 939; Kaw Life Assn. v ... Lemke, 40 Kan. 142, and cases cited; Elliott's ... Appellate Procedure, par. 678.] ...          V. Is ... the same rule ... ...
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