Cadwallader v. Lehman
| Decision Date | 08 March 1969 |
| Docket Number | No. 45276,45276 |
| Citation | 451 P.2d 163,202 Kan. 738 |
| Parties | Darlene CADWALLADER, Appellee, v. Dale H. LEHMAN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A judgment against a nonresident defendant who has been summoned into court by constructive or substituted service, alone, can have effect only as a judgment in rem, and as such, the judgment will affect only property which the defendant may have within the court's jurisdiction.
2. Although a judgment obtained against a nonresident on constructive service may be personal in form, it can have no effect beyond the property which has been attached or brought under court control in the pending lawsuit.
3. Before the property of a nonresident may be subjected to payment of a judgment obtained on constructive or substituted service, alone, the property must have been seized by attachment or otherwise made subject to the control of the court prior to the time judgment is entered.
4. Pursuant to the provisions of K.S.A. 60-308(a)(1) personal service of summons made upon a nonresident outside the state has the force and effect of service by publication.
5. In determining whether out-of-state service has been properly made, the trial court, under the provisions of K.S.A. 60-308(a)(2), may consider the affidavit of service or any other competent proofs.
6. Previous attachment of property is not required to authorize constructive or substituted service upon a nonresident, where property of the nonresident located within the state is subsequently attached prior to the rendition of judgment, provided the nonresident defendant is afforded reasonable notice of and opportunity to defendant against the attachment before judgment is entered against him.
7. Under the provisions of K.S.A. 60-204 substantial compliance with a method of serving process shall effect valid service thereof where the court finds that, notwithstanding some irregularity or omission, the party served was made aware that legal proceedings were pending in a specified court in which his person, status or property might be affected.
8. An equitable interest in land which is located within the state is subject to attachment.
9. Where, in an action for recovery of money, land which has previously been conveyed by the debtor is attached as being the debtor's property, and thereafter a judgment in rem is entered against the debtor, the judgment creditor may thereupon institute proceedings in the nature of a creditor's bill to set aside the conveyance as fraudulent and to subject the land to payment of the judgment. (Following Parmenter v. Lomax, 68 Kan. 61, 74 P. 634.)
10. The granting of relief under K.S.A.1968 Supp. 60-255(b) by setting aside a judgment entered by default rests in the sound discretion of the trial court and its action in refusing to vacate and set aside a default judgment will not be disturbed or reversed on appeal in the absence of a showing of an abuse of its judicial discretion.
11. The record is examined in an action brought for the recovery of money, wherein out-of-state service was had upon a nonresident defendant and real estate previously conveyed by him was attached as his property, and for reasons appearing in his property, and for reasons appearing was properly served with summons outside the state; (2) such service was equivalent to service by publication; (3) the attachment of defendant's interest in real estate previously conveyed to his wife was valid; (4) the judgment entered against the defendant is valid as a judgment in rem; (5) plaintiff is entitled to maintain proceedings in the nature of a creditor's bill to test the validity of defendant's conveyance to his wife as against the judgment; (6) the trial court is not shown to have erred in refusing to set aside the default judgment entered against defendant.
Robert M. Baker, Ashland, for appellant.
Ken W. Strobel, Dodge City, and B. G. Larson, Dodge City, on the brief, for appellee.
This action was commenced by the plaintiff, Darlene Cadwallader, to recover an amount alleged to be due from the defendant, Dale H. Lehman, on a judgment for child support obtained by plaintiff in the District Court of Thurston County, Nebraska, on January 10, 1957. Default judgment was entered in this case on July 27, 1967, for the sum of $6,066.65 and interest. A motion by defendant to set the judgment aside was overruled and this appeal followed. The parties will be designated either by name or as plaintiff and defendant, respectively.
In the Nebraska action, plaintiff was awarded the custody of three minor children and the defendant was ordered to pay child support of $100 per month. In the present lawsuit it is plaintiff's position that her former spouse has defaulted in the payment of child support due under the judgment, and such is the gravamen of the instant cause of action.
Since the rendition of the Nebraska judgment both plaintiff and defendant have assumed new marital relationships. Neither party now lives in the state of Nebraska, the plaintiff presently residing in Alaska, and the defendant in California.
During the calender year 1965 the defendant inherited from his mother a one-third interest in a 320 acre farm in Clark County, Kansas. On July 25, 1966, the defendant quitclaimed his interest in the farm to his present wife, Ileen, the deed being recorded in Clark County on August 15 1966. The deed bears no federal revenue stamps and recites a consideration of $1.
On August 19, 1966, four days after the deed to Ileen was recorded, the present action was filed in the Clark County District Court. On the same date a summons was issued, being directed to the sheriff of Clark County. The summons was returned by the sheriff on the same day it was issued, bearing the notation 'Not found in Clark County, Kansas.'
Less than a month later, and on September 8, 1966, a summons for personal service outside the state of Kansas was directed to the sheriff of Los Angeles County, California. The officer's return, which is signed and acknowledged, shows personal service on the defendant in Los Angeles County on October 3, 1966. Nine days later, on October 12th, a letter was dispatched on the defendant's behalf by a Los Angeles law firm addressed to plaintiff's lawyers in Dodge City, Kansas. The letter advised Mrs. Cadwallader's counsel that Mr. Lehman had consulted their office; that he was not a Kansas resident; and suggested that the proceedings be suspended for lack of jurisdiction.
Under date of November 9, 1966, a letter from plaintiff's counsel was sent by certified mail to the defendant, and Mr. Lehman personally receipted for the same. The letter advised the defendant that the plaintiff's petition would be presented to the court on December 8, 1966; that plaintiff's attorneys were in the process of attaching his undivided one-third interest in the Clark County real estate (describing it); and that if defendant did not appear and defend the suit, it was their intention to sell his interest in the land under execution and eventually file a partition action. Lehman was further advised that if the land was transferred, action would be taken to set the deed aside as fraudulent.
Judgment was not taken on December 8th, but an affidavit for attachment was filed on that date and an order of attachment was issued and directed to the Clark County sheriff for service. The sheriff's return showed that service was made on December 8, 1966, by levy upon and attachment of the defendant's interest in the described Kansas real estate.
A copy of the attachment order, bearing the return made by the sheriff of Clark County, was also thereafter served personally on the defendant in Los Angeles County, California, by the same officer who served the original summons. The verified return shows the date of service as January 18, 1967.
Apparently no further action was taken in this lawsuit until July 27, 1967. In the meantime, Ileen and her husband, the defendant, together with owners of the other two-thirds (2/3) interest in the real estate, contracted to sell the land to a third party for $56,000, and deeds were executed pursuant to their agreement.
When the prospective purchaser had the abstract examined, he learned the real esstate had been attached, and this court was advised, at the time of oral argument, that the purchase money is being held in escrow pending final determination of the present proceedings. The defendant now contends this was the first he had known of the attachment; that he had not even known he was being sued in Kansas. This contention however is refuted by the record.
On a date not shown, but presumably after sale was made, the defendant's brother, Lawrence A. Lehman, individually and as guardian of an incompetent sister, filed a motion for leave to intervene. This motion was heard on July 27, 1967. Lawrence appeared through his counsel, Robert M. Baker, who now represents the defendant, and the defendant made no appearance either in person or by counsel. The court overruled Lawrence's motion to intervene, but proceeded to approve the service which had been had upon the defendant and awarded judgment against the defendant in the amount asked.
Following entry of judgment, the defendant, for the first time, made an appearance in this lawsuit. On August 10, 1967, he appeared specially and filed a motion to set aside the default judgment of July 27, 1967, on two grounds: First, that he was a California resident and the court had no jurisdiction over him and second, that there was no competent evidence or reason on which a judgment, default or otherwise, could be based. On the same day, August 10, 1967, two motions were also filed by the defendant's wife, Ileen, one to intervene and the other to quash the attachment.
All three motions were heard on September 7, 1967, at which time the court overruled the defendant's motion to set aside...
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