Briscoe v. Getto

• Decision Date: 06 December 1969
• Docket Number: No. 45477,45477
• Citation: 204 Kan. 254,462 P.2d 127
• Parties: James B. BRISCOE and Susan Briscoe, husband and wife, Appellants, v. Richard GETTO and Patricia A. Getto, husband and wife, Appellees, and B. J. Kingdon, Garnishee-Appellee.
• Court: Kansas Supreme Court

Page 127

462 P.2d 127

204 Kan. 254

James B. BRISCOE and Susan Briscoe, husband and wife, Appellants, v. Richard GETTO and Patricia A. Getto, husband and wife, Appellees, and B. J. Kingdon, Garnishee-Appellee.

No. 45477.

Supreme Court of Kansas.

Dec. 6. 1969.

Rehearing Denied Jan. 28, 1970.

Syllabus by the Court

1. Service of process is the statutory method of obtaining jurisdiction over the person of a defendant and the method of service provided by statute must be substantially complied with.

2. Methods of service, new or additional to those otherwise provided by statute, are not authorized by K.S.A. 60-204.

3. Substantial compliance with some statutory method of service is necessary before the provisions of K.S.A. 60-204 have any validating effect.

John S. Seeber, Wichita, argued the cause, and Mark H. Adams, Charles E. Jones, Wm. I. Robinson, J. Ashford Manka, Clifford L. Malone, Mark H. Adams, II, Floyd E. Jensen, Philip L. Bowman, Robert Hall, Donald W. Bostwick, Wichita and Joe Rolston, Wichita, of counsel, were with him on the brief for appellants.

Richard I. Stephenson, Wichita, argued the cause, and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson, David W. Buxton, John T. Conlee, John Prather, John E. Matson and Douglas D. Johnson, Wichita, and Hugo T. Wedell and Homer V. Gooing, Wichita, of counsel, were with him on the brief for garnishee-appellee.

HATCHER, Commissioner.

This is an appeal from an order overruling a motion for judgment against a non-answering garnishee because of improper service of the order of garnishment.

The facts are not in dispute. The appellants, J. B. Briscoe and his wife, obtained a money judgment against the defendants, Richard Getto and his wife. Richard Getto was an employee of B. J. Kingdon, an architect with offices on the third floor of the Beacon Building, Wichita, Kansas.

In an effort to collect on their judgment, the appellants started garnishment proceedings. The first order of garnishment was issued June 28, 1967, directed to B. J. Kingdon, and he was personally served at his office. A second order of garnishment was issued on January 11, 1968, and Kingdon was again personally served at his office.

The third order of garnishment, the one out of which the present controversy arises, was issued by the appellants on April 11, 1968, and was again directed to Kingdon at his address in the Beacon Building. This order of garnishment was served on Kingdon's secretary, D. J. Blasdel, on April 12, 1968, and it was so stipulated.

It was also stipulated that Kingdon came to his office after the garnishment order had been served on his secretary April 12, 1968, and at that time was told by his secretary that he had again had garnishment papers relating to the lawsuit. On the same day Kingdon told Getto of the garnishment papers and in that connection testified as follows:

'I called him (Getto) in the office and told him about it and in the past, he had been calling-getting ahold of Mr. Seeber and it had been handled in that manner, and I told him to get ahold of Mr. Seeber and see what the problem was now, and he said all right. He (Getto) left my office, went back into the draft room. And when I left for my appointment, that's the last-really it just slipped my mind. I didn't do anything about it.'

It was further stipulated that on each of the two previous occasions when the orders of garnishment were served on Kingdon, he withheld money until such time as an order had been obtained from the Court releasing the garnishment and authorizing him to pay the money to Getto and the Clerk of the Court. However, on this occasion Kingdon did not secure an order of the court or file an answer as required by K.S.A.1967 Supp. 60-718.

It is conceded that the secretary, D. J. Blasdel, had never been appointed as process agent for B. J. Kingdon and that Kingdon's residence was not located at the Beacon Building.

On May 16, 1968, appellants filed their motion for judgment against the garnishee, Kingdon, for the amount due and owing on the Getto judgment in the sum of $3,002.82. The motion alleged the failure of the garnishee to respond to the garnishment order of April 12, 1968.

Following a hearing the trial court stated in a letter opinion:

'It is the judgment of this Court that plaintiffs' motion for judgment against B. J. Kingdon be denied.

'This Court finds that the garnishee in the Order of Garnishment dated April 11, 1968, was B. J. Kingdon, an individual.

'The Return on Service of Garnishment shows that the Order of Garnishment was delivered to or served on R. J Hasdel (D. J. Blasdel), Secretary, on April 12, 1968.

'This Court finds that B. J. Kingdon was not served with the Order of Garnishment as provided by law for personal service upon an individual (KSA 60-304(a)), on April 11, 1968 or April 12, 1968.'

The trial court, after stating that appellants relied on K.S.A. 60-204 and quoting the statute, further ruled:

'It is this Court's opinion and finding that B. J. Kingdon was not made aware that an action was pending in a specified Court in which his person, status or property were subject to being affected by the service of the Order of Garnishment on ...