Eaton v. Eaton

• Decision Date: 06 March 1926
• Docket Number: 26,522
• Parties: MARY J. EATON, Appellee, v. Ross A. EATON, Appellant
• Court: Kansas Supreme Court

243 P. 1040

120 Kan. 477

MARY J. EATON, Appellee, v. Ross A. EATON, Appellant

No. 26,522

Supreme Court of Kansas

March 6, 1926

Decided January, 1926.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PROCESS--Service--Privilege of Nonresident--Waiver. A nonresident, privileged to avoid a summons in a civil action served on him while he is in the state attending the trial of a criminal action against him and pursuant to bond for his appearance, should assert his privilege promptly; in any event, before judgment in the civil action. Otherwise, the privilege is waived, and the judgment is not voidable.

Thomas E. Wagstaff and Jay W. Scovel, both of Independence, for the appellant.

T. S. Salathiel, of Independence, for the appellee.

OPINION

BURCH, J.:

The question involved is when privilege must be exercised to avoid civil process served in this state on a nonresident present in the state at the trial of a criminal action against him, and pursuant to bond given for his appearance.

While the plaintiff, Mary J. Eaton, and her husband, Ross A. Eaton, the defendant, were domiciled in Texas, they separated under circumstances which qualified the wife to acquire a separate domicile in Kansas. In February, 1923, she commenced an action for divorce and alimony, and service was made on defendant by publication. The children of the marriage were in custody of plaintiff and, notwithstanding the estrangement between husband and wife, defendant sometimes visited the children in Kansas. While visiting the children in Independence, defendant was arrested on complaint of his wife for nonsupport of the children, and he gave bond for his appearance at the trial. The trial occurred on August 2, 1923, and on defendant's appearance at the trial he was served personally with summons in the action for divorce and alimony. The answer day stated in the summons was September 3. On September 24, judgment was entered in favor of plaintiff for divorce, and for alimony in the sum of $ 20,000. Immediately upon conclusion of the criminal trial on August 2, defendant consulted his Kansas attorney and his Texas attorney, and arranged with them to have the service of summons made on that day set aside. On January 4, 1924, defendant appeared specially by his attorneys and moved the court to set aside the personal judgment for alimony, on the ground of invalidity of the service made on August 2, 1923. The motion was denied, and defendant appeals.

It is settled law of this state that a suitor in necessary attendance on any court outside the territorial jurisdiction of his residence, is exempt from service of any summons upon him while in good faith going to, attending, or returning from court. (Bolz v. Crone, 64 Kan. 570, 67 P 1108.) The exemption rests on principles of the common law ( Reiff v. Tressler, 86 Kan. 273, 120 P. 360; Oil Co. v. Beutner, ...