Haley v. Hershberger
| Decision Date | 12 June 1971 |
| Docket Number | No. 45955,45955 |
| Citation | 207 Kan. 459,485 P.2d 1321 |
| Parties | John S. HALEY, Plaintiff-Appellant, v. James W. HERSHBERGER, Defendant-Appellee. Stuart G. HAZARD, Plaintiff-Appellant, v. James W. HERSHBERGER, Defendant-Appellee. Karl W. STOCK, Plaintiff-Appellant, v. James W. HERSHBERGER, Defendant-Appellee. Joseph D. BECK, Plaintiff-Appellant, v. James W. HERSHBERGER, Defendant-Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under the Kansas Code of Civil Procedure, a defendant may impeach, if attacked timely before rendition of judgment, a sheriff's return of service of summons showing personal service.
2. 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.
3. There to no statutory method for personal service by leaving a copy of the petition and summons with the secretary of the person to be served.
4. A motion for extension of time to answer, or an extension of time to take depositions, or to require the production of documents for inspection and copying before answer, may not be regarded as a waiver of lack of jurisdiction of the person of defendant because of insufficiency of process, or insufficiency of service of process.
Carl L. Wettig, Wichita, argued the cause, and Ronald K. Badger, Wichita, was with him on the brief for appellants.
H. E. Jones Wichita, argued the cause and was on the brief for appellee.
On June 15, 1967, three cases were filed separately by the respective plaintiffs, John S. Haley, Stuart G. Hazard, and Karl W. Stock, against the defendant, James W. Hershberger. On July 20, 1967, the fourth case was filed by plaintiff, Joseph D. Beck, against the same defendant.
The events giving rise to these cases began in November, 1964, at which time plaintiffs Hazard, Stock, and Beck were contacted by the defendant who offered to sell certain oil and gas leasehold interests in land located in West Virginia. Similar contracts were offered to plaintiff Haley during February, 1965. Hazard invested $86,000 in thirteen gas wells drilled by the defendant during the period from December, 1964, through May, 1965. Haley invested $7,700 in two oil wells drilled during the period from May through July, 1965. Beck invested $24,000 in six gas wells drilled during the period of December, 1964, through May, 1965. Stock invested $40,000 in eight gas wells drilled during the same period. The plaintiffs alleged the defendant represented that the wells were very successful, and would produce large volumes of gas. In August and September, 1965, Harzard, Beck, and Stock received checks for the sale of gas from wells first connected to the pipeline. From September to December, 1965, other gas wells were connected to the pipeline and initial run checks were received by the plaintiffs.
The first three counts of each petition were substantially the same, alleging misrepresentation in Count 1, negligence in Count 2, and rescission in Count 3. Counts 4 and 5 of the Haley petition alleged sale of unregistered securities. Count 4 of the Harzard and Stock petitions alleged breach of warranty.
The defendant's answer admitted the respective payments made by the plaintiffs, but denied all allegations of liability. The statute of limitations for each such count is two years. (K.S.A. 60-513.)
In the three cases filed June 15, 1967, the plaintiffs instructed that service of process be made upon Hershberger as follows: In the Haley case, by service at his office; in the Hazard case, by service upon him at the central YMCA Branch between 12:00 noon and 1:00 p. m. and in the Stock case, by service upon him at his home in Wichita.
On June 19, the summonses were returned showing the sheriff received them on June 16, 1967, and served the same on that date by leaving a copy of the summons and a copy of the petition in each case personally with Hershberger at 10:30 a. m. In the Beck case, filed July 20, 1967, the return on the service of summons showed the sheriff received the summons on July 20, 1967, and on August 14, 1967, he served Hershberger by leaving a copy of the summons and a copy of the petition, 'with Mrs. Berenice Mitchell-Secretary-Hershberger Oil Company, suite 807, 1st National Bank Bldg. 9:40 a. m.'
As hereafter indicated, various orders established the time for the defendant to answer or otherwise plead in all cases. Discovery proceedings by the plaintiffs and the defendant were promptly instituted, including the taking of various depositions and motions for producing and copying of documents, which were completed on November 28, 1967, by the defendant taking Beck's deposition.
It was jointly stipulated by the parties in open court that the defendant would have twenty days to answer after the taking of Beck's deposition.
On December 18, 1967, and in accordance with the order of the district court, Hershberger filed his answer in each of the four cases. In each case, among other defenses alleged, the ninth defense was as follows:
'By fully answering herein, defendant does not waive and hereby specifically reserves and relies upon the following defenses: lack of jurisdiction over the person of this defendant; insufficiency of process; insufficiency of service of process; the failure of the Petition to state a claim upon which relief can be granted; and failure to join an indispensable party.'
Hershberger's motion to dismiss for lack of jurisdiction over his person because of the insufficiency of process, and the insufficiency of service of process, was based upon the fact the original summonses were delivered to Hershberger's secretary, Mrs. Berenice Michell, at the office of the Hershberger Oil Company, First National Bank Building, Wichita. The plaintiffs concede that fact. Likewise, in the Beck case, the return on the original summons showed that service was made upon Hershberger by leaving a copy of the summons and the petition with his secretary, Mrs. Mitchell. Accordingly, and on June 10, 1968, the district court sustained Hershberger's motion, and dismissed the petitions.
On April 4, 1968, the plaintiffs in each case obtained personal service on Hershberger by service of alias summons. Hershberger's motion for summary judgment upon the ground that on April 4, 1968, the causes of action stated in each of the four petitions were barred by the statute of limitations, was sustained by the district court on February 3, 1969.
On February 28, 1969, the plaintiffs in all cases filed notices of appeal from the district court's order of February 3, 1969, entering summary judgment against the plaintiffs.
Later, and on July 8th and 9th, 1969, the plaintiffs in all cases filed amendments to their notices of appeal, purporting to specify for appellate review, the district court's order of June 10, 1968, sustaining Hershberger's motion dismissing the petitions because of insufficiency of process, and the insufficiency of service of process.
Hershberger's motion to dismiss the plaintiffs' amendments to their notices of appeal for failure to comply with Rule No. 6(p) of the rules of this court, was sustained by the district court on August 22, 1969.
The plaintiffs concede the statute of limitations had run prior to December 18, 1967, when Hershberger answered, but assert that the district court made no finding as to the exact date the statute of limitations ran, instead, the district court held that since the causes of action were only first properly commenced by alias summonses served on April 4, 1968, their causes of action were barred inasmuch as they accrued more than two years prior to that date. Thus, they argue for the purposes of this appeal, any showing by them that the causes of action were properly commenced prior to April 4, 1968, requires a reversal of the district court, and advance several reasons why personal jurisdiction was acquired over Hershberger prior to April 4, 1968-first, the sheriff's return showing personal service on Hershberger was conclusive on the parties; second, the service of summons substantially complied with K.S.A. 60-304(a), and third, the conduct of the defendant prior to raising any issue over personal jurisdiction waived such defenses.
Considering the plaintiffs' first alleged error, we are of the opinion there is no merit in the contention that where the sheriff's return shows personal service, it is conclusive on the parties and cannot be impeached. K.S.A. 60-212(b) provides, in part:
Little purpose would be served in permitting a defendant to assert insufficiency of service of process, if he were prohibited from presenting facts to establish the claim.
The plaintiffs rely on Goddard v. Harbour, 56 Kan. 774, 44 P. 1055, and related cases. The case is not in point. In Goddard an attempt was made to challenge the veracity of the sheriff's return in a collateral proceeding after judgment had been rendered. The opinion makes this quite clear by stating
'* * * It is not necessary now to inquire how far the court may go in setting aside a service when challenged in the suit in which it is made before judgment * * *' (l.c. 747, 44 P. l.c. 1056.)
We think Goddard specifically eliminated the question before the court in the instant case. The general rule...
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