Brothers v. Hebert

• Decision Date: 06 June 1931
• Docket Number: 29,949
• Citation: 299 P. 627,133 Kan. 262
• Parties: SUTER BROTHERS, a Copartnership, Appellee, v. AGNES HEBERT, a Minor, by her Guardian and Next Friend, FRED HEBERT, Appellant, and THE FIRST NATIONAL BANK OF PALCO, Appellee
• Court: Kansas Supreme Court

299 P. 627

133 Kan. 262

SUTER BROTHERS, a Copartnership, Appellee, v. AGNES HEBERT, a Minor, by her Guardian and Next Friend, FRED HEBERT, Appellant, and THE FIRST NATIONAL BANK OF PALCO, Appellee

No. 29,949

Supreme Court of Kansas

June 6, 1931

Decided January, 1931.

Appeal from Graham district court; WILLIAM B. HAM, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INFANTS--Process--Sufficiency of Service. Upon the question of the service of summons in a civil action upon a minor under the statute in force in December, 1921, the record is examined and it is held that neither the original return made by the sheriff nor his amended return made under an order and the permission of the court show a valid service in conformity to the statute.

2. APPEARANCES--Examination of Witness on Jurisdictional Matter as General Appearance. The contention made by appellees that by offering certain evidence appellant entered an appearance in the case which cured defects in, or lack of, service of summons, is examined and held to be without merit.

John R Parsons, of Wakeeney, and Arch L. Taylor, of Salina, for the appellant.

F. E. Young, of Stockton, for appellee Suter Brothers, and W. L. Sayers, of Hill City, for appellee First National Bank of Palco.

OPINION

HARVEY, J.:

This is an appeal by a minor, appearing by her natural guardian and next friend, from an order of the court overruling a motion to set aside a judgment in a foreclosure action because of lack of service of process, and from an order permitting the sheriff to amend his return on the summons. We pass (to be considered later herein) the question raised by appellees as to whether a general appearance was entered which cured the absence or defect of the original service.

The record to present the question sought to be raised by appellant is as follows: On December 3, 1921, Suter Brothers, a partnership, filed an action on two promissory notes which had been executed by Fred Hebert and Anita J. Hebert, his wife, and to foreclose a mortgage given to secure their payment. It appears that by the time the action was filed Anita J. Hebert had died intestate, leaving as her heirs at law her husband, Fred Hebert, and five minor children. The petition named as defendants "Fred Hebert, . . . the First National Bank of Palco, . . . Fred Hebert, husband, Rosela N. Hebert, a minor, Agnes Hebert, a minor, Philip H. Hebert, a minor, Gleva Hebert, a minor, and Eans Hebert, a minor, heirs at law of Anita J. Hebert, deceased." The praecipe for summons requested the clerk to issue summons, directed to the sheriff, for service upon the defendants, "Fred Hebert, Rosela N. Hebert, Agnes Hebert, Philip H. Hebert, Gleva Hebert, Eans Hebert, . . ." and setting forth the indorsement to be made thereon. The clerk issued the summons to the sheriff, commanding him "to notify Fred Hebert, Philip H. Hebert, Rosela N. Hebert, Gleva Hebert, Agnes Hebert and Eans Hebert . . ." that they had been sued, etc. The return, signed by the sheriff, recites:

". . . December 6, 1921, served the same by leaving a copy thereof duly certified with the indorsements thereon at the usual place of residence of the within-named defendants, Fred Hebert, Philip H. Hebert, Gleva Hebert, Agnes Hebert and Eans Hebert."

The return also showed personal service on the defendant, Rosela N. Hebert. On January 4, 1922, the First National Bank of Palco filed an answer and cross petition for judgment on two notes signed by Fred Hebert and Anita J. Hebert, and to foreclose a second mortgage upon the real property described in the petition. On February 7, 1922, on plaintiff's application, the court appointed a guardian ad litem for the minor defendants. On May 1, 1922, judgment was rendered for the plaintiff, also for the First National Bank of Palco, upon their notes against the defendant Fred Hebert. The action was continued as to the other defendants. On June 1, 1922, the plaintiff and the First National Bank of Palco appeared by their attorneys, "and the defendants, the minor heirs of Anita J. Hebert, deceased, appeared not, but answer said action through their duly appointed and qualified guardian ad litem." A personal judgment was rendered for the plaintiff and for the bank against the minors for the sum due on the notes sued upon, and a decree was entered for the foreclosure of the mortgage. (We pause to wonder why a personal judgment was rendered against the minors on these notes.) Thereafter an order of sale was issued, the real property was sold in conformity thereto, and was purchased by the First National Bank of Palco, and the sale was confirmed by an order of the court made on July 26, 1922. Thereafter, and in June, 1929, Agnes Hebert, a minor, by her guardian and next friend, Fred Hebert, appearing specially for the purpose of the motion only, filed her motion to set aside the judgment of foreclosure rendered in the cause, for the reason: (1) that the court had no jurisdiction to render the judgment against her because she was not at any time, or in any manner, served with summons or other process in said cause, as provided by law; (2) that neither her guardian nor her father, as her natural guardian, nor the person having the care and control of her, or with whom she lived, were made parties defendants in said action, nor was service of summons or other process served upon them, or either of them, as provided by law; (3) that she entered no appearance in said cause. On February 3, 1930, Suter Brothers filed a motion to permit and require the amendment of the sheriff's return of service of summons in the action, for the reason that the same is incomplete and does not speak the whole truth. Both of these motions came on for hearing on May 19, 1930. Evidence was taken. The sheriff testified that he served the summonses by leaving them with one of the girls, Rosela, whom he found at home, and that he left with her six copies of the summons. The court overruled the motion to set aside the judgment and sustained plaintiff's motion to direct and permit the sheriff to amend his return, and the same was amended so as to show the personal service on Rosela N. Hebert as was shown by the original return, and as to the other Heberts the amended return reads:

"December 6, 1921, served the same by delivering a copy thereof duly certified with the indorsements thereon at the usual place of residence of the defendant Fred Hebert, and one copy for himself as father of the following-named children and minors at that time living and making their home with the said defendant and father Fred Hebert, and by leaving a copy of this writ with the indorsements thereon duly certified for each minor at said place for Agnes Hebert, Philip H. Hebert, Eans Hebert and Gleva Hebert."

The statute then in force (Gen. Stat. 1915, § 6968; Laws 1909, ch. 182, § 77, which has since been revised [see R. S. 60-408]) read as follows:

"When the defendant is a minor, the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, then the manner of service may be the same as in the case of adults. . . ."

It will be noted that neither the original return nor the amended return show service of summons in compliance with this statute. Under this statute it was necessary that the minor be served and that service also be had on his guardian, the father; or if neither of these could be found, upon his mother, or the person having the care or control of him, or with whom the minor lived. There is no provision in the statute for serving the minor at the usual place of such minor's residence, unless there was a showing that the minor could not be found, and there was no recital of that fact in the return. The only one of the minors served personally was Rosela. We do not have the question before us as to whether the service on her was good. The question here is whether the service was good on Agnes, and clearly neither return showed a good service on her. While it is true a guardian ad litem was appointed for her, the appointment did not bind her in the absence of the service of process as provided by statute. (Gen. Stat. 1915, § 6922; R. S. 60-408; Martin v. Battey, 87 Kan. 582, 592, 125 P. 88.) It necessarily follows that the service, even under the amended return, was insufficient to give the court jurisdiction of the person of the defendant, Agnes Hebert, a minor.

Appellees raise the...