Dickerson v. Burlington & M.R.R. Co.

• Decision Date: 10 May 1890
• Citation: 43 Kan. 702,23 P. 936
• Court: Kansas Supreme Court
• Parties: LUTHER DICKERSON v. THE BURLINGTON & MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA

23 P. 936

43 Kan. 702

LUTHER DICKERSON v. THE BURLINGTON & MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA

Supreme Court of Kansas

May 10, 1890

Error from Atchison District Court.

JUDGMENT for defendant Railroad Company, at the September term, 1887. The plaintiff Dickerson brings the case here. The material facts appear in the opinion.

Judgment affirmed.

S. H Glenn, for plaintiff in error.

W. W & W. F. Guthrie, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This action was originally commenced by Dickerson against the Burlington & Missouri River Railroad Company in Nebraska, to recover damages for killing stock on its line through the plaintiff's farm in Atchison county. It was commenced before a justice of the peace in the city of' Atchison. A summons was issued and returned. The service as shown by the return is as follows: "Received this writ July 20, 1887; July 20, 1887, served the same by delivering a copy thereof, with the indorsements thereon duly certified, to Mr. Fish, agent of the within railroad company." The company appeared by its attorney only for the purposes of the motion, and moved to set aside and quash the summons for the reason, among others, that the return of said summons is informal, defective, and insufficient in law. This motion was overruled, the case tried, and a judgment rendered in favor of Dickerson. The case was then taken on error to the district court, and the judgment of the justice reversed, for the reason, among others, that there was no legal service of summons. From this judgment of reversal by the district court, Dickerson brings the case here.

I. The important question is, was there a legal service of the summons? We regard the case of U. P. Rly. Co. v. Pillsbury, 29 Kan. 652, as conclusive on this question. The court says:

"The return on the summons shows that it was delivered 'to D W. March, agent of the U. P. Rly. Co., Manhattan, Kansas.' Where this was served, or what kind of an agent of said defendant D. W. March was, is not shown. Such service is insufficient. It does not show that said March was president, or chairman of the board of directors, or other chief officer, cashier, secretary, treasurer, clerk, or managing agent, and is therefore not good either under § 68, ch. 80, Comp. Laws of 1879, or § 13, ch. 81, Comp. Laws of 1879. Neither does it show service upon any person named as the service agent of a railroad corporation under §§ 68a, 68b, and 68c, ch. 80, Comp. Laws of 1879, or upon any person authorized to receive service in case of a failure of a corporation to name such service agent, or at a place...