Comley v. Company

• Decision Date: 16 November 1897
• Docket Number: 204
• Citation: 50 P. 973,6 Kan.App. 718
• Parties: WALTER M. POND AND HENRY COMLEY, Partners, et al., v. THE NATIONAL MORTGAGE AND DEBENTURE COMPANY et al
• Court: Kansas Court of Appeals

50 P. 973

6 Kan.App. 718

WALTER M. POND AND HENRY COMLEY, Partners, et al., v. THE NATIONAL MORTGAGE AND DEBENTURE COMPANY et al

No. 204

Court of Appeals of Kansas, Southern Department, Central Division

November 16, 1897

November 16, 1897,

Error from Reno District Court. Hon. L. Houk, Judge. Reversed.

Order reversed.

John W Roberts, for plaintiffs in error.

McKinstry & Fairchild, for defendants in error.

OPINION

DENNISON P. J.

This action was brought in the District Court of Reno County Kansas, by W. M. Pond & Co., as plaintiffs, against Ephraim J. Lash, Robert H. Smith, the National Mortgage and Debenture Company, V. P. Caffry, Robt. H. Brouse and Handy Bros., as defendants, to foreclose a mechanic's lien upon lot 5 in block 18 in Miller and Smith's Addition to the city of Hutchinson, Kan. Handy Bros. filed their answer and cross-petition, claiming a mechanic's lien upon the same premises. All the other defendants defaulted. Judgment was rendered in favor of Pond & Co. and Handy Bros., decreeing them to be coequal lien holders. All the other defendants were barred and foreclosed. The National Mortgage and Debenture Company and the Boston Safe Deposit & Trust Company each filed a motion to set aside the service of summons upon the National Mortgage and Debenture Company.

The motions alleged that Ephraim J. Lash and Annie M. Lash, his wife, and Robert H. Smith, executed and delivered to the National Mortgage and Debenture Company their certain promissory note for the sum of twenty-five hundred dollars, and a mortgage upon said lot 5 to secure the payment of the same; that prior to the commencement of this action the National Mortgage and Debenture Company had sold and assigned the note coupons and mortgage to the Boston Safe Deposit & Trust Company, which was then the owner and holder thereof; that the deed of assignment was not put of record until after the commencement of this action; and that said Boston Safe Deposit & Trust Company was not made defendant therein.

The motions also allege that G. Y. Johnson, who was served with summons as president, "was not at said time the president, mayor, chairman of the board of directors trustee, or other chief officer, nor its cashier, treasurer, secretary, clerk or managing agent, and that no other service was ever made or attempted to be made on said defendant the National Mortgage and Debenture Company." The sheriff was permitted to amend his return by showing that it was served personally upon G. Y. Johnson, vice-president of the National Mortgage and Debenture Company and a chief officer of said Company, and that the president was not found in Shawnee County at the time of service. Upon the hearing of the motions, the court found "that the summons served upon the National Mortgage and Debenture Company was served upon George Y. Johnson, the vice-president of said Company; that the president of said Company was not found by the sheriff of Shawnee County, and was not in Shawnee County at the time of said service." The court concluded as a matter of law that the summons served upon George Y....