Cahill-Swift Mfg. Co. v. Hayes

• Decision Date: 08 April 1916
• Docket Number: 20087
• Citation: 156 P. 735,97 Kan. 740
• Parties: CAHILL-SWIFT MFG. CO. v. HAYES ET AL.
• Court: Kansas Supreme Court

156 P. 735

97 Kan. 740

CAHILL-SWIFT MFG. CO. v. HAYES ET AL.

No. 20087

Supreme Court of Kansas

April 8, 1916

Syllabus

When a judgment is taken by default and a motion to set it aside is filed, service of notice of the motion is waived when the plaintiff appears and contests the motion on various non-jurisdictional grounds.

One against whom a lawsuit is pending does not enter appearance therein when he is only in attendance in court as a witness duly served with a subpœ na.

A city court having jurisdiction similar to that of a justice of the peace does not lose jurisdiction of the parties under section 6377 of the General Statutes of 1909 (Code Civ. Proc. § 17) which provides that a defendant is not bound to remain longer than one hour after the time fixed for his appearance if the plaintiff does not appear, unless the evidence is clear and convincing that the plaintiff failed to appear within the hour.

When a defendant has been regularly sued and regularly summoned in a case regularly entered on the official docket of a city court, the court does not lose jurisdiction of the defendant because the case against him is not entered on an unofficial trial docket prepared by the clerk of the court for the judge’s convenience nor because the judge by mistake tells the defendant that there is no case set for that date.

Where two defendants are sued in a city court as partners and one of the defendants asks for and obtains a continuance of the case, the court does not thereby lose jurisdiction to render a judgment on a later date, to which the action was continued, against the codefendant who was present and ready for trial on the day and hour when the case was first set.

Appeal from District Court, Sedgwick County.

Action by the Cahill-Swift Manufacturing Company against T. P. Hayes and another. The motion to set aside judgment for the plaintiff company was sustained, and it appeals. Reversed with directions.

Foulke, Matson & Wall, of Wichita, for appellant.

Glenn W. Porter, of Wichita, for appellees.

OPINION

DAWSON, J.

The plaintiff company sued T. P. Hayes and Louis M. Clark in the city court of Wichita, alleging that the defendants were partners and indebted to it for a sum of money for which it asked judgment.

The city judge, whose jurisdiction is much like that of a justice of the peace, issued summons directing the defendant Hayes to appear at 8 o’clock a. m. on October 8, 1913. Hayes appeared and remained until 9 o’clock, when the cases set for that date were called. The case against Hayes was not called. The attorney for Hayes asked the judge if there was a case of Cahill-Swift Manufacturing Company v. Hayes set for trial on that date and the judge informed him that there was not. In this the judge was mistaken. There was such a case on the official docket and the summons to defendant so advised him. The court had a trial docket in which the cases to be tried each day were entered by the clerk for the judge’s convenience, and this case had been omitted from it. Some time after 9 o’clock a. m., Hayes and his attorney left the courtroom and never returned.

After several continuances a trial was had and judgment rendered against defendants, Hayes and Clark, but it was not satisfactory to the plaintiff company, so it appealed to the district court, and there again a judgment was rendered against Hayes. No appearance was made in the district court by Hayes, nor was he served with summons, but he was present and testified as a witness, having been brought there by subpœ na. The judgment against Hayes in the district court was entered on March 24, 1914.

On February 27, 1915, Hayes filed a motion to set aside the judgment on the ground that no summons had been served on him, that the court had no jurisdiction to render judgment against him, and that the judgment was null and void. No summons or notice of this motion to vacate the judgment was served on plaintiff or its counsel. When the motion was called for hearing, counsel for plaintiff objected for the reason that the court was without jurisdiction. The objection was overruled. Plaintiff’s counsel, however, did contest the proceedings throughout, objected to the competency of evidence, cross-examined the witnesses produced by Hayes to support his motion, demurred to the evidence, introduced the transcript of the city court proceedings, produced witnesses who testified for plaintiff, and introduced the files and records as evidence in opposition to the motion to vacate. Defendant’s motion to set aside the judgment was sustained. Hence this appeal.

We have mentioned in detail what was done by counsel for plaintiff after their...