Frazier v. Douglas
| Decision Date | 06 March 1897 |
| Citation | 48 P. 36,57 Kan. 809 |
| Parties | FRAZIER v. DOUGLAS. |
| Court | Kansas Supreme Court |
Where a defendant makes what he calls a "special appearance to set aside the service of a summons," and at the same time sets up and submits matters which relate to the merits of the case, and are nonjurisdictional in character, he will be deemed to have waived the defects in the service of the summons, and to have submitte himself and his rights to the jurisdiction of the court.
Error from district court, Jefferson county; Louis A. Myers, Judge.
Action by S. A. Frazier against John C. Douglas. Judgment for defendant, and plaintiff brings error. Reversed.
C. D Walker, M. Gephart, and J. L. Berry, for plaintiff in error.
J. C Douglass, for defendant in error.
S. A. Frazier obtained a tax deed upon a quarter section of land in Jefferson county, which he placed on record on November 17, 1890. On November 12, 1892, and before the two-years statute of limitations had run against him, he filed a petition in ejectment in the district court, asking a recovery of the land from John C. Douglas, together with rents and damages. A summons was promptly issued, and an attempt was made by the sheriff to serve the same on November 17, 1892, but it appears that the paper served upon Douglas was not a strict copy of the summons. The copy had written therein the year "1882" wherever the year "1892" appeared in the original. Otherwise the paper served was a true copy of the original summons, which was in due form, and upon which the sheriff made his return. On February 8, 1893, when the case was reached and after the statute of limitations above referred to had run, a motion was made by Douglas to quash and set aside the summons, and the service thereof, because of the defects mentioned. It was alleged by Douglas that the appearance was special, and for the purpose of the motion only, and at the same time he filed an affidavit in support of the motion. The motion was sustained, and the service of the summons was quashed, and set aside. Another summons was immediately issued and served, and when the case came on for trial, and the plaintiff offered in evidence his tax deed, an objection was made, for the reason that more than two years had elapsed between the recording of the deed and the commencement of the action. The objection was sustained, and the plaintiff therefore failed to maintain his cause of action.
The first question for consideration is the action of the court in setting aside the service of the summons. The original summons, as issued and placed in the hands of the sheriff was a valid writ in all respects. In his return thereon the sheriff stated that he served it personally by delivering a true copy of the same, with all the indorsements thereon, to the defendant, Douglas. It is said that the error in writing the year in the copy...
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Meador v. Manlove
... ... [156 P. 733] ... effect of a general appearance. Meixell v ... Kirkpatrick, 29 Kan. 679; Frazier v. Douglass, ... 57 Kan. 809, 48 P. 36; Investment Co. v. Cornell, 60 ... Kan. 282, 56 P. 475; Abercrombie v. Abercrombie, 64 ... Kan. 29, 67 P ... ...
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N. A. Kennedy Butter Tub Company v. The First and Hamilton National Bank of Fort Wayne
... ... proceedings were void. (See, Packing and Provision Co. v ... Casing Co., 34 Kan. 340, 8 P. 403; Frazier v ... Douglas, 57 Kan. 809, 48 P. 36; Thompson v ... Greer, 62 Kan. 522, 64 P. 48; Woodhouse v. Land ... & Cattle Co., 91 Kan. 823, 139 P. 356; ... ...
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Ziska v. Avey
...This contention cannot be sustained under the authorities." ¶15 The court then cites from Association v. Lemke, supra, and Frazier v. Douglas, 57 Kan. 809, 48 P. 36. The court said: "Whether or not the objection was fatal we need not determine, as the appearance made by the defendant at the......
- Ziska v. Avey