Bradley v. Sudler

Decision Date26 January 1952
Docket NumberNo. 38531,38531
Citation239 P.2d 921,172 Kan. 367
PartiesBRADLEY v. SUDLER.
CourtKansas Supreme Court

Syllabus by the Court.

1. By the provisions of G.S.1949, 7-104, which require that 'any regularly admitted practicing attorney in the courts of record of another state' having professional business in the courts of this state shall have associated and personally appearing with him in such action or proceeding an attorney who is duly and regularly admitted to the practice of law in this state and who also resides and maintains his law office within the judicial district in which the action is filed or pending and that such fact shall be made to appear by a written showing filed therein, no court shall entertain any action or proceeding while the same is begun, carried on or maintained in violation thereof.

2. The word 'entertain,' as used in the above-mentioned statute, means 'to receive and take into consideration.'

3. In an appeal from an order overruling a motion to strike a petition the record is examined and it is held: (a) The petition showed on its face that it was filed by a 'foreign' attorney within the meaning of the above-mentioned statute, (b) that the requirements of the statute with reference to the association and personal appearance of local counsel had not been met, and (c) absent any written showing that compliance with the statute had been made the court had no jurisdiction to entertain or consider the petition and the motion to strike the same should have been sustained.

Henry H. Asher, of Lawrence, argued the cause and C. M. Gorrill, Alan F. Asher and Richard A. Barber, all of Lawrence, were with him on the briefs for appellant.

No appearance for appellee.

PRICE, Justice.

This is an appeal from an order overruling a motion to strike the petition in a damage action.

The question involved concerns the jurisdiction of a court to entertain an action when the petition on file shows on its face that compliance with G.S.1949, 7-104, with reference to the association of local counsel, has not been made.

The factual background of the matter is this:

On January 24, 1951, plaintiff filed the action. His petition was signed:

'Thomas Paul Downs,

501 Columbia Bank Building,

Kansas City 6, Missouri,

HA 0710,

Attorney for Plaintiff.'

On February 15, 1951, defendant answered by way of a general denial.

The case was set for trial for June 6, 1951. On June 5th defendant filed a motion entitled 'Motion to Strike,' the material portions of which are:

'Now Comes the Defendant * * * and moves the Court to strike from the files in this case the alleged Petition of the Plaintiff filed herein and to strike from the Docket of this Court all of the proceedings and filings herein for the following reason, to-wit:

'That it is provided by Section 7-104 of the General Statutes of Kansas of 1949, as follows: (Quoting from statute.)

'Defendant shows to the Court that the person who signed the Petition in this cause resides in and has his office in the City of Kansas City, Missouri, and is admitted to practice in the State of Missouri, and has not associated with him in this cause any Attorney who is a resident of and maintains his law office within the Fourth Judicial District, and that it has not been made to appear by a written showing filed herein that he has associated with him such Attorney, and that this Court is prohibited by law from entertaining this action or any matter, hearing, or proceeding in connection therewith by reason of said Statute.'

On June 6, 1951, this motion to strike was overruled and the parties were directed to proceed to trial. Counsel for plaintiff made an oral request for a continuance. The court directed him to file a statutory affidavit for such, if he so desired. This was done. The court found the affidavit for continuance to be insufficient and denied the motion. Counsel for plaintiff then announced that he was unprepared and unwilling to proceed to trial as directed by the court. Defendant moved to dismiss the action for want of prosecution. This motion was sustained and the court ordered that the action be dismissed for want of prosecution, and that defendant recover judgment against plaintiff for costs.

Notwithstanding the action was dismissed, defendant, for reasons good and sufficient to him, but which for the purposes of this appeal we do not consider material or necessary to discuss, in due time appealed from the order overruling the motion to strike the petition from the files and docket. The notice of appeal was served on plaintiff personally. The specification of error is: 'The Trial Court erred in overruling Appellant's Motion to Strike the Petition and all proceedings in said cause from the files, and in entertaining said action.'

G.S.1949, 7-104, reads: 'Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department, commission or other...

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10 cases
  • McKenzie v. Burris
    • United States
    • Arkansas Supreme Court
    • October 22, 1973
    ... ... See also Bradley v. Sudler, 172 Kan. 367, 239 P.2d 921 (1952); 174 Kan. 293, 255 P.2d 650 (1953) ...         [255 Ark. 334] On the other hand, it has been ... ...
  • Smith, In re
    • United States
    • North Carolina Supreme Court
    • January 6, 1981
    ...Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5, reh. den., 368 U.S. 945, 82 S.Ct. 376, 7 L.Ed.2d 341 (1961); Bradley v. Sudler, 172 Kan. 367, 239 P.2d 921 (1952), later appeal, 174 Kan. 293, 255 P.2d 650 (1953); Arthaud v. Griffin, 202 Iowa 462, 210 N.W. 540 (1926); Annot., 45 A.L.R......
  • State v. Morningstar
    • United States
    • Kansas Supreme Court
    • July 18, 2014
    ...statutory silence and ambiguity regarding the unit of prosecution is construed in favor of the defendant.”); Bradley v. Sudler, 172 Kan. 367, 371, 239 P.2d 921 (1952) (recognizing that statute was ambiguous based on silence). But we need not rely solely upon silence to find ambiguity in K.S......
  • Rafferty v. Land O'Lakes, Inc.
    • United States
    • Kansas Supreme Court
    • October 30, 1998
    ...law in this state for the purpose of this action. They cite Taylor v. Taylor, 185 Kan. 324, 342 P.2d 190 (1959); Bradley v. Sudler, 172 Kan. 367, 239 P.2d 921 (1952); and Architectural & Engineered Products Co. v. Whitehead, 19 Kan.App.2d 378, 869 P.2d 766, rev. denied 255 Kan. 1000 (1994) ......
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