Hanson v. Murphy
| Decision Date | 11 December 1971 |
| Docket Number | No. 46228,46228 |
| Citation | 208 Kan. 297,491 P.2d 551 |
| Parties | Robert L. HANSON, Appellant, v. J. Albert MURPHY et al. Appeal of J. Albert MURPHY, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The burden of proving jurisdiction under the 'long arm' statute, K.S.A.1971 Supp. 60-308(b), is on the person invoking such jurisdiction.
2. A preliminary determination of a question of fact made by the court for the purpose of determining jurisdiction over a nonresident is not binding at a later trial on the merits.
3. Where plaintiff's evidence makes a prima facie case for jurisdiction it is error to quash service of summons otherwise properly made on a nonresident defendant.
Albert J. Kirk, of Bogart, Turner, Kirk & Poe, Wichita, argued the cause, and Vincent L. Bogart, Wichita, was with him on the brief for appellant.
No appearance for appellee.
FOTH, Commissioner:
This is an appeal from an order quashing service of summons under our long arm statute, K.S.A. 60-308(b), made on the defendant, J. Albert Murphy, a resident of Iowa. The motion to quash claimed no procedural deficiencies in the manner of service but went only to the question of jurisdiction over the person of the defendant.
Plaintiff claims to have defrauded-and in one lawsuit it was determined that he was-by a franchise-selling operation out of Iowa. Advertisements in the Wichita papers and the blandishments of a salesman named Coy led plaintiff to become, in May, 1965, a licensee of Speed Print Duplicating, Inc., a purveyor of licenses which authorized its licensees to use its trade name in the printing business. When the rrsults failed to live up to the expectations fostered by the ads and Coy's promises and the losses mounted, plaintiff looked for someone to sue.
His field of vision narrowed to Speed Print and 'J. A. Murphy Company, Inc.,' and, in his first effort to obtain redress, in November, 1968, he sued both, alleging them to be Iowa corporations.
Speed Print shortly drops from sight, but Murphy remains as a central figure. At least three Murphys appear in this narrative, and it is essential to understanding the plot to distinguish among them as best one can. The first is J. Albert Murphy, the individual who is the defendant-appellee in this action. The second is 'The J. Albert Murphy Co.,' sometimes known as 'The Murphy Co.,' sometimes as 'J. A. Murphy d/b/a The J. Albert Murphy Co.,' and sometimes as 'The J. A. Murphy Co., Inc.' Whether this Murphy was or is a corporation-or if so whether that fact should be ignored-is one of the points of contention in this case. The third is 'J. Albert Murphy Enterprises, Inc.,' surely a corporation but just as surely a creature of no substance and uncertain virtue. They will sometimes be referred to as 'Murphy,' 'Murphy Co.,' and 'Enterprises,' respectively.
Speed Print denied any fraud and included in its response to the petition a 'cross-claim,' not against the other named defendant, but against 'J. A. Murphy, doing business as The J. Albert Murphy Company,' claiming that he was the sole author of any fraud.
This 'cross-claim,' against 'Murphy' individually, was dismissed on February 2, 1969, because he was never served with process. Its filing however, apparently stirred just enough breeze for plaintiff's bird dogs to catch a whiff of their true quarry. On April 24, 1969, plaintiff moved to amend his petition to make 'Murphy,' himself, an additional party defendant. This motion was overruled on May 2, 1969, for reasons which do not appear. It may only be surmised that the impendency of the trial, to begin May 19, may have been a factor.
In the meantime the defendant named and served as the corporate 'Murphy Co.' answered, alleging its true name to be 'Enterprises,' and denying fraud. It cross-claimed against Speed Print for furnishing any information about the operation which might prove to be false; the disposition of this cross-claim does not appear in the record.
In any event, when trial to a jury was begun of the first case only 'J. Albert Murphy Enterprises, Inc.,' appeared as a defendant. The result was a judgment in favor of plaintiff, against that entity only, in the sum of $13,300.22.
In aid of execution of that judgment plaintiff conducted a debtor's examination of our present defendant 'Murphy,' in his capacity of president of the corporate 'Enterprises.' As a result of the usual catechism it was discovered that 'Enterprises' had nominal cash in the bank, no real estate, no leases, no office equipment, no vehicles, no stock, no notes, no mortgages, no bonds, no scrip, no securities, no copyrights or patents, no royalties, and no other assets of any kind; that it was wholly owned by 'Murphy;' and that it occupied (rent free) quarters owned by 'Murphy' personally, and used his car and his office furniture. Obviously his judgment against 'Enterprises' would afford plaintiff no satisfaction and little comfort.
The result was this suit, based on the same alleged fraud but naming as defendants 'Murphy' individually and two other individuals, whose roles do not appear.
The petition alleged:
The prayer was for the claimed damages. Plaintiff is now clearly attempting to pin the alleged fraud on 'Murphy' personally, although Coy's agency is alleged to be on behalf of 'Murphy Co., Inc.'
The defendant Murphy's motion to quash was accompanied by his affidavit, the substantive protion stating:
'That he has not transacted any business within the State of Kansas nor has he committed any tortious act within said State nor does he own, use or possess any real estate situated in the State of Kansas nor has he contracted to insure any person, property or risk located within this State at the time of contracting, nor has he caused injury to persons or property within the State of Kansas arising out of any act or omission outside of this State while at the time of said jury he was engaged in solicitation or service activities within this State or that products, materials or things processed, serviced or manufactured by him anywhere were used or consumed within the State in the ordinary course of trade or use and that he has never lived in the State of Kansas, at any time.'
As may be seen, the affidavit is purely conclusory in nature, negating one by one the statutory grounds for subjecting a nonresident to the jurisdiction of a Kansas court. As to each possible basis for asserting jurisdiction it amounted to a general denial and no more.
To counter this affidavit, plaintiff filed the affidavit of his attorney, verified on information and belief:
'1) On or about May 16, 1968, plaintiff entered into a contract with Speed Print Duplication, Inc. through its agent, J. Albert Murphy doing business as J. Albert Murphy Company.
'2) J. Albert Murphy Company was a sole proprietorship owned by J. Albert Murphy until July 25, 1969, at which time it was incorporated under Iowa law.
'3) The contract referred to in paragraph 1 was procured by Jerry Coy in Wichita, Kansas acting as an agent of defendant, J. Albert Murphy.
'4) J. Albert Murphy doing business as J. Albert Murphy Company entered into a contract with Speed Print Duplicating, Inc. for the sale of the latter's franchises and it was for the purpose of selling those franchises that defendant, J. Albert Murphy, acting through Jerry Coy, transacted business with plaintiff in Wichita, Kansas.'
The motion to quash was nevertheless sustained. Plaintiff moved for reconsideration, filing the following additional affidavit, positively verified by counsel:
'1) J. Albert Murphy doing business as J. Albert Murphy Company entered into a contract with Speed Print Duplicating, Inc. for the sale of the latter's franchises, said contract being marked Exhibit 'A', attached hereto, and made a part hereof.
'2) On or about May 15, 1969, Gerald E. Coy's deposition was taken in Des Moines, Iowa, at which time he testified to the following (said deposition is filed with the Clerk of this Court, Case No. C 15570):
'a. That he worked for the J. Albert Murphy Company.
'b. That he sold Speed Print franchises.
'c. An advertisement appeared in The Wichita Eagle and was placed there by the J. Albert Murphy Company.
'd. He talked to plaintiff in Wichita, Kansas regarding a Speed Print franchise. Hanson called in response to the advertisement in the newspaper. As a result of Coy's conversation with Hanson, Coy procured Hanson's signature on the contract attached hereto and marked Exhibit 'B'.
'3) J. Albert Murphy Company was a sole proprietorship until July 25, 1969, on which date it became an Iowa corporation according to the official records of the State of Iowa.'
On reconsideration the trial court adhered to its prior decision, and plaintiff appeals.
The thrust of plaintiff's argument is that Coy, when...
To continue reading
Request your trial
-
JEM CORP. v. McClellan
...only make out a prima facie case that a defendant has committed those acts which allegedly give rise to liability. Hanson v. Murphy, 208 Kan. 297, 301, 491 P.2d 551 (1971); see also Professional Investors Life Ins. Co. v. Roussel, supra, at 692. The jurisdictional use of the language "commi......
-
State ex rel. Stephan v. Commemorative Services Corp., 66525
...matters." State, ex rel. Sanborn v. Koscot Interplanetary, Inc., 212 Kan. 668, Syl. p 7, 512 P.2d 416 (1973). See Hanson v. Murphy, 208 Kan. 297, 491 P.2d 551 (1971); Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 99, 490 P.2d 615 (1971); Annot., 32 A.L.R.2d 231 § 26. It has been......
-
Ammon v. Kaplow
...need not prove their case for the court to make a preliminary determination that personal jurisdiction exists. Hanson v. Murphy, 208 Kan. 297, 491 P.2d 551 (1971). The documentation provided certainly amounts to more than a bald, conclusory allegation of Furthermore, Steiner's alleged acts ......
-
Professional Investors Life Ins. Co. v. Roussel
...challenge, particularly when the facts alleged are detailed rather than themselves conclusory in nature. Hanson v. Murphy, 208 Kan. 297, 302, 491 P.2d 551 (1971). Plaintiff's threshold showing in this regard is impressive considering the dearth of discovery undertaken in the case, and is bu......