Hartzell v. Magee
| Decision Date | 10 June 1899 |
| Docket Number | 11266 |
| Citation | 60 Kan. 646,57 P. 502 |
| Parties | S. T. HARTZELL v. WILLIAM MAGEE |
| Court | Kansas Supreme Court |
Decided January, 1899.
Error from court of appeals, southern department; A. W. DENNISON B. F. MILTON, and M. SCHOONOVER, judges.
Judgment reversed and cause remanded.
J. B Ziegler, for plaintiff in error.
Charles J. Peckham, for defendant in error.
This was an action of replevin, brought by William Magee to recover a stock of merchandise which had been previously seized by S. T. Hartzell as sheriff, upon attachment process. Magee claimed to have purchased the goods from J. T. Pershall, but the creditors of Pershall alleged that the transfer was fraudulent. Accordingly the good faith of the parties and the honesty of the transaction were submitted to a jury, but their verdict was against Magee. He attempted to take the case to the court of appeals, and when it came on for review in that court the jurisdiction of the court was challenged upon several grounds, one of which was that no summons in error had ever been issued or served, and that the issuance and service of the same had not been waived. The court overruled the objections to the jurisdiction, and going to the merits decided that the verdict was contrary to the evidence, and the judgment was thereupon reversed. (Magee v. Hartzell, 7 Kan.App. 489, 54 P. 129.) The discretionary jurisdiction of this court was invoked, and upon an order made the case was certified here for review, and the first question presented to us is as to the jurisdiction of the court of appeals.
No summons in error was ever issued or served, and no written waiver of summons was filed, nor do we find any legal proof that such waiver was ever executed. The court of appeals however, held that, as the defendant raised the objection in the same brief and in connection with the merits of the case, he had thereby conferred jurisdiction on the court, and for that reason that the jurisdictional objections were not available to him. This view does not meet our approval. A common practice, which has never been discouraged in this court, is for defendant in error to raise jurisdictional objections at the final sub-mission of the case and to present them in the same brief with the merits. His argument is in the alter-native, that the case should be dismissed for want of jurisdiction, but, if the court disagree with him on that point, that for reasons...
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Russell v. State Highway Commission
...therein, this court will not entertain proceedings in error prosecuted to reverse such judgment." Syl. par. 2. The case of Hartzell v. Magee, 60 Kan. 646, 57 P. 502, was a case of an attempted appeal from a judgment rendered the district court to the court of appeals without a proper summon......
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Palmer v. Helmer
... ... proceeding brought after the expiration of the time limited ... therefor." (Syl. ¶2, Hartzell v. Magee, 60 Kan ... 646, 57 P. 502.) ... Consequently, ... it must follow that this court cannot assume jurisdiction in ... this ... ...
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Bishop v. Foley
... ... Dickerson v ... B. & M. R. R. Co., 43 Kan. 702, 23 P. 936; McIntosh ... v. Wheeler, 58 Kan. 324, 49 P. 77; Hartzell v ... Magee, 60 Kan. 646, 57 P. 502; Thompson v ... Greer, 62 Kan. 522, 524, 64 P. 48 ... The ... judgment is reversed, and the ... ...
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Samson v. The United States Fidelity and Guaranty Company
...determined by the following: Phillips v. Thralls, 26 Kan. 780; Van Bentham v. Comm'rs of Osage Co., 49 Kan. 30, 30 P. 111; Hartzell v. Magee, 60 Kan. 646, 57 P. 502; v. Mallison, 65 Kan. 484, 70 P. 369. (See, also, 15 C. J. 802, § 101.) We note also in paragraph D of the insurance policy th......