Davila v. Vanderberg, 50619
| Citation | 4 Kan.App.2d 586,608 P.2d 1388 |
| Decision Date | 11 April 1980 |
| Docket Number | No. 50619,50619 |
| Parties | Sabino DAVILA and Diana Davila, Appellants, v. Donald R. VANDERBERG, Appellee. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
In an action seeking personal judgments against a defendant, it is held: failure to obtain service of process as prescribed by law renders the tolling provisions of K.S.A. 60-517 immaterial, and the action was properly dismissed for lack of jurisdiction over the person of the defendant. See K.S.A. 60-241(b ).
R. W. Niederhauser, Mission, for appellants.
Barry Warren, Barton Brown and Sally H. Williamson, of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, for appellee.
Before SWINEHART, P. J., and REES and SPENCER, JJ.
Plaintiffs appeal from an order of dismissal reciting the ground for dismissal to be that "the action was not timely commenced as required by K.S.A. 60-203."
On April 25, 1977, plaintiffs filed a petition in the Wyandotte County district court seeking personal judgments against defendant, recovery for personal injuries and property damage arising out of an automobile accident that occurred on April 25, 1975, in Wyandotte County. The accident involved an automobile driven by defendant and an automobile owned and driven by plaintiff Sabino Davila. Plaintiff Diana Davila was a passenger in the latter automobile. The petition alleges "defendant is a resident of Wyandotte County, Kansas."
K.S.A. 60-203 states:
It has been held "that jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance." Haley v. Hershberger, 207 Kan. 459, 463, 485 P.2d 1321, 1325 (1971).
Summons was issued, apparently to the Wyandotte County sheriff, on April 26, 1977, for personal service on defendant; the return, dated April 27, 1977, and filed April 28, 1977, showed no service. Alias summons was issued to the Jewell County or Jefferson County sheriff on April 14, 1978, for personal service on defendant; the return, dated April 24, 1978, and filed April 25, 1978, showed no service. No other issuance of summons is reflected by the record on appeal.
We gather from the appearance docket included as a part of the record on appeal that the mechanics for constructive service of process, service by publication, were initiated by the filing on July 20, 1977, of an affidavit for publication service as called for by K.S.A. 60-307(d ). No proof of publication has been filed with the court by the publisher but the record on appeal includes a 1978 motion of plaintiffs that has attached to it a copy of proof of publication, in affidavit form, reflecting publication of notice on a single date, July 22, 1977, in a newspaper printed and published in Wyandotte County and which newspaper is authorized by law to publish legal notices. See K.S.A. 60-307(e ). There is no showing in the record on appeal of compliance with the K.S.A. 60-307(f ) requirement that a copy of the publication notice be mailed to the defendant. K.S.A. 60-307(e ) requires publication once a week for three consecutive weeks. K.S.A. 60-307(g ) provides that:
"Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in (K.S.A. 60-307) (e ) and (f ) . . . ."
Clearly, publication service has not been obtained; is not to be "deemed complete." Further, constructive service upon defendant by utilization of the K.S.A. 60-307 procedure would not support subject matter jurisdiction for entry of personal judgments against defendant for plaintiffs' injuries and damages arising out of the automobile accident since K.S.A. 60-307(b ) explicitly provides that publication service "shall not warrant a personal judgment against (the) defendant."
To this date there has been no perfected personal or completed constructive service of process upon defendant.
On June 19, 1978, the defendant filed a motion to dismiss in which he relied upon five of the seven defenses set forth in K.S.A. 60-212(b ); the two omitted defenses were improper venue and failure to join a necessary party. How defendant became aware plaintiffs had filed anything in court and why he was motivated to file his motion is not reflected in the record on appeal.
Ultimately, the trial court entered its order of dismissal.
In regard to limitations, K.S.A. 60-510 provides that:
"Civil actions . . . can only be commenced within the period prescribed in (K.S.A....
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