Dougan v. McGrew

• Decision Date: 10 December 1960
• Docket Number: No. 41949,41949
• Citation: 357 P.2d 319,187 Kan. 410
• Parties: , 86 A.L.R.2d 1174 Mary Eleanor DOUGAN, Administratrix of the Estate of Harry M. Dougan, Deceased, Appellant, v. John Milton McGREW, Harry Joseph Reitz, Jr., and Dr. Chester E. Lee, Appellees.
• Court: Kansas Supreme Court

Page 319

357 P.2d 319

187 Kan. 410, 86 A.L.R.2d 1174

Mary Eleanor DOUGAN, Administratrix of the Estate of Harry

M. Dougan, Deceased, Appellant, v. John Milton McGREW, Harry Joseph Reitz, Jr., and Dr. Chester

E. Lee, Appellees.

No. 41949.

Supreme Court of Kansas.

Dec. 10, 1960.

Syllabus by the Court.

1. The provisions of G.S.1949, 60-408, which authorize service of process on minors the same as upon other persons defendants in action, and require that 'if there be a natural or legally appointed guardian for such minor, * * * service shall also be made in the same manner upon such guardian,' contemplate that a minor defendant may be served with summons in Kansas in an in personam action, and thereby confer jurisdiction upon the trial court over him, when his father and natural guardian, a nonresident, cannot be served in Kansas, or with valid process in the state of his residence, where there is no legally appointed guardian for such minor.

2. Where the trial court acquires jurisdiction over a minor defendant in a pending action in accordance with G.S.1949, 60-408, and there is no legally appointed guardian for such minor, the trial court must appoint a guardian ad litem for such minor pursuant to G.S.1949, 60-408 and 60-409.

Marion C. Miller, Kansas City, argued the cause, and Edw. A. Benson, Jr., Kansas City, was with him on the brief for the appellant.

Melvin J. Spencer, Kansas City, Missouri, argued the cause, and Douglas Stripp, Kansas City, Missouri, and Eugene T. Hackler, Olathe, were with him on the brief for the appellee, Harry Joseph Reitz, Jr.

SCHROEDER, Justice.

This is an appeal from an order of the trial court in a wrongful death action (an in personam action) sustaining a motion to quash service of process upon a minor defendant who was personally served with summons in Kansas, but whose father and natural guardian resides in the State of Missouri.

The basic question presented is whether the provisions of G.S.1949, 60-408, contemplate that a minor defendant may be served with summons in Kansas, and thereby confer jurisdiction upon the trial court, when his natural guardian, a nonresident, cannot be served in Kansas, or with valid process in the state of his residence.

Harry M. Dougan died on November 1, 1957, in Johnson County, Kansas, while in a collision between his truck, which he was operating, and the automobiles operated by three defendants, respectively. The petition herein seeking damages for the wrongful death of Harry M. Dougan was filed by his widow on October 29, 1959, in the district court of Johnson County, Kansas. She is also the administratrix of his estate by appointment of the probate court of Johnson County, Kansas, where they resided.

Dr. Lee, one of the defendants, residing in Johnson County, was duly served in Johnson County on the same day, and he has filed his answer. The defendant, McGrew, a minor, and his mother and natural guardian, Viola McGrew, both reside in Douglas County and were served with a summons by the sheriff of that county.

The third defendant, Harry Joseph Reitz, Jr., was a minor living in Douglas County. He was personally served with a summons by the sheriff of Douglas County on November 6, 1959. His father, Harry Reitz, Sr., and presumably his mother, reside in Kansas City, Jackson County, Missouri, and cannot be served with summons in Kansas. At the request of the plaintiff the clerk of the district court of Johnson County issued a summons directed to the sheriff of Jackson County, Missouri, which was served personally on the father and natural guardian of Harry Joseph Reitz, Jr., service being made in Jackson County, Missouri, on the 2nd day of November, 1959. Counsel for the appellant state in their brief this was done not by direction of any statutes particularly, least give the thought that it would at least give the father notice of the pendency of the action.

Thereupon, the defendant, Harry Joseph Reitz, Jr., through his attorneys, filed his motion to quash service of process by a special appearance alleging noncompliance with the provisions of G.S.1949, 60-408, relating to service on minors.

On January 4, 1960, the time having expired for Harry Joseph Reitz, Jr., to plead in accordance with the answer date specified in his summons, the plaintiff moved for the appointment of a guardian ad litem for him pursuant to G.S.1949, 60-408 and 60-409.

The district court, on the same day, after hearing sustained the motion to quash service of process, and also refused to give further consideration to the plaintiff's application for the appointment of a guardian ad litem.

The plaintiff has duly perfected her appeal, specifying as error the order of the court quashing service of process, and the refusal of the trial court to appoint a guardian ad litem.

Venue of this action has been properly established in Johnson County by the fact that the plaintiff resides there, the cause of action accrued on a highway in Johnson County, and one of the defendants resides in that county.

In any action it is essential that the trial court have jurisdiction not only over the subject matter but of the parties to the action. Jurisdiction over the person of the defendant can be acquired only by the issuance and service of process in the method prescribed by the statute, or by a voluntary appearance in court. Board of County Com'rs of Butler County v. Black, Sivalls & Bryson, Inc., 169 Kan. 225, 217 P.2d 1070, and McFadden v. Mid-States Manufacturing Corp., 175 Kan. 240, 262 P.2d 838.

The applicable statutory sections are quoted in pertinent part.

G.S.1949, 60-408, provides:

'In any proper case service may be made on minors, * * * by a summons personally served or by publication notice as provided in this code, the same as upon other persons defendants in action. If there be a natural or legally appointed guardian for such minor, * * * service shall also be made in the same manner upon such guardian. If there be no legally appointed guardian for such minor, * * * or if such guardian fail to appear and answer in the action within the time fixed by the summons or publication notice, the court shall appoint a guardian ad litem for such minor, * * * and such guardian ad litem shall file proper pleadings in such cause, which shall include a general denial of the plaintiff's petition, as shall put the plaintiff to proof of his cause of action. * * * The appointment cannot be made until after the service of the summons in the action, and no default judgment shall be rendered against such minor, * * *'. (Emphasis added.)

G.S.1949, 60-409, provides:

'The appointment may be made upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he * * * neglect so to apply, the appointment may be made upon application of * * * the plaintiff in the action.'

The first sentence of 60-408, supra, definitely says service may be made on a minor by a summons personally served. The next provision says 'If there be a natural * * * guardian * * * service shall also be made in the same manner upon such guardian.' (Emphasis added.) Unfortunately, the statute does not specifically direct what to do 'if there be no natural guardian,' a situation in which the minor has no living parent, or as in our case, no natural or legally appointed guardian who can be served with process within the State of Kansas. It is apparent, however, that 60-408, supra, permits service upon a minor, who has no living parent or legally appointed guardian, because the foregoing sections of the statute make ample provision for the appointment of a guardian ad litem to represent the minor under these circumstances, and specifically admonish that no default judgment shall be rendered against the minor.

The appellant admits that since this is an action for damages--an action in personam--constructive service by publication would be of no effect (See, G.S.1959 Supp. 60-2525); nor would personal service of a summons made out of the state, a form of constructive service, be a valid service of process (See, G.S.1949, 60-2529).

It is apparent the plaintiff in the instant action has done everything under the foregoing sections of the statute, which she could possibly do up to this point in the proceedings, to obtain jurisdiction over the defendant, Harry Joseph Reitz, Jr. She has obtained personal service of summons upon him in this state, and no further service could be obtained under 60-408, supra. His parents could not be served with summons in Kansas, and insofar as the record here discloses, he has no legally appointed guardian residing in the State of Kansas. These facts are not controverted. Being unable to serve any other party, the plaintiff (appellant) has duly taken action to have a guardian ad litem appointed to answer and defend for such minor defendant.

Can it be said the provisions of 60-408, supra, contemplate that a minor, who is found living in Kansas, is immune to process when his parents live in another state? Can it be said that a plaintiff who claims to have been wronged in the State of Kansas by a minor under these circumstances is denied a remedy in the Kansas courts? In equitable matters this court adheres to the rule that no wrong should be suffered without a remedy. See, State ex rel. Veale v. School Board, 110 Kan. 779 [Syl. p5], 204 P. 742, and Hultz v. Taylor, 163 Kan. 180, 185, 181 P.2d 515. It is fully recognized, however, this is not the situation confronting the court.

It may be observed that no statutory directive is found authorizing a plaintiff to have a legal guardian appointed under these circumstances, but only to have a guardian ad litem appointed, as set out in 60-409, supra.

The argument is advanced that the appellant is not denied a remedy by reason of the provisions of G.S.1949, 8-401 and 8-402 (now G.S.1959 Supp. 8-401 and 8-402), the so-called nonresident motorist statute.

The...