Board of Com'rs of Butler County v. Black, Sivalls & Bryson, 37869

• Decision Date: 06 May 1950
• Docket Number: No. 37869,37869
• Citation: 217 P.2d 1070,169 Kan. 225
• Parties: BOARD OF COUNTY COM'RS OF BUTLER COUNTY v. BLACK, SIVALLS & BRYSON, Inc., et al.
• Court: Kansas Supreme Court

Page 1070

217 P.2d 1070

169 Kan. 225

BOARD OF COUNTY COM'RS OF BUTLER COUNTY v. BLACK, SIVALLS & BRYSON, Inc., et al.

No. 37869.

Supreme Court of Kansas.

May 6, 1950.

Syllabus by the Court

1. In an action against a foreign corporation doing business in this state, such as referred to in G.S.1935, 17-504, jurisdiction must and can only be acquired by the issuance and service of process in the method therein prescribed, or by a voluntary appearance in court.

2. In an action against a foreign insurance company doing business in this state, such as referred to in G.S.1935, 40-218, jurisdiction must and can be acquired only by the issuance and service of process in the method therein prescribed, or by a voluntary appearance in court.

J. Morris Moon, Jr., Assistant County Attorney, Augusta, argued the cause, and O. J. Connell, Jr., County Attorney, El Dorado, on the briefs for appellant.

J. B. McKay, El Dorado, argued the cause, and James B. McKay, Jr., El Dorado, on the briefs for appellees.

WERTZ, Justice.

Appellant filed its petition in the district court of Butler County on March 31, 1949, and on the same day caused summonses to be issued to defendant Black, Sivalls & Bryson, Inc., of Oklahoma City, Oklahoma, and delivered to the secretary of state to serve; to defendants American Automobile Insurance Company and American Automobile Fire Insurance Company, both of St. Louis, Missouri, and delivered to the state commissioner of insurance to serve; and to defendant Lloyd G. Mouser, of McPherson, and delivered to the sheriff of McPherson County to serve. Returns were duly made by the commissioner of insurance on April 1 and by the secretary of state on April 2 showing service of the summonses by forwarding certified copies thereof to the two insurance companies and to the Black company. Return was made on April 1 by the deputy sheriff of McPherson County showing service on defendant Mouser by leaving at his usual place of residence. All defendants appeared specially and filed motions to quash the service. Black, Sivalls & Bryson, Inc., based its motion to quash on the grounds that the purported and pretended summons issued for them (1) was not directed to the secretary of state, and (2) did not require them to answer by a certain day not less than forty days nor more than sixty days from its date. The motions to quash filed by the two insurance companies were based on the grounds that the purported and pretended summonses issued for each of them were not directed to the state commissioner of insurance, and did not require each of them to answer by a certain day not less than forty days from the dates thereof. Defendant Mouser's motion to quash was based on the ground that he was not a resident of Butler County, Kansas, and none of his codefendants had been summoned in that county, and that his service of summons was made in McPherson County. Defendant Mouser's motion was filed May 2, and the other defendants' motions were filed May 12. On July 8, appellant filed a motion to amend the summonses. Hearing was had on the motions on July 8, appellees appearing specially for the purposes of the motions to quash only. The court, after hearing the arguments, sustained the motions to quash, and thereafter overruled appellant's motion to amend. This appeal is from those rulings.

The first question for decision in this appeal is whether the court erred in sustaining the motions to quash. None of the defendants were residents of Butler county, where the action was brought, and the service on Mouser was not good unless valid service had been obtained on at least one of his codefendants, see G.S.1935, 60-509; 'Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned'; also see Hembrow v. Winsor, 94 Kan. 1, 145 P. 837. The other defendants were foreign corporations,...