Hastie v. Burrage
| Decision Date | 11 June 1904 |
| Docket Number | 13,711 |
| Citation | 69 Kan. 560,77 P. 268 |
| Parties | JOHN K. HASTIE et al. v. W. W. BURRAGE et al |
| Court | Kansas Supreme Court |
Decided January, 1904.
Error from Sumner district court; C. L. SWARTS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PRACTICE, DISTRICT COURT -- Omission of Names of Court and County in Caption of Petition is Not Fatal, and May be Cured by Amendment. A petition filed in the district court did not recite in its caption the names of the court and the county in which the action was brought, as required by section 87 of the code (Gen. Stat. 1901, § 4521). A praecipe for summons, properly entitled, was filed, and a summons in due form, notifying the defendants where the action was pending, was issued and served. Held that the court had jurisdiction of the subject-matter and obtained jurisdiction of the parties by the service of the summons and that no error was committed by permitting the petition to be amended by inserting in its caption the names of the court and the county where the action was pending.
2. EVIDENCE -- Books of Account of Agent Admissible to Prove a Payment. An entry made upon the account-books of an agent of a payment made to him for his principal is competent evidence of the fact and nature of such payment as against the payor, when it has been shown that such entry was made at the time of the occurrence of the events and was correct.
3. LIMITATION OF ACTION -- The Payment, Not the Indorsement of it, Tolls the Statute. It is the payment of a portion of a debt, and not the actual indorsement of such payment upon the instrument evidencing such debt, which tolls the statute of limitations.
James Lawrence, and Levi Ferguson, for plaintiffs in error.
Herrick & Herrick, and Ivan D. Rogers, for defendants in error.
OPINION
This was an action on a note and for the foreclosure of a mortgage given to secure the same. The petition nowhere in its caption or body recited "the name of the court and the county in which the action is brought," as provided in section 87 of the code of civil procedure (Gen. Stat. 1901, § 4521). It was, however, indorsed upon the outside "No. 9019, district court, Sumner county, Kansas," and was filed in that court. Upon a praecipe properly entitled, a summons was issued and duly served on the defendants. Conceiving that this summons was issued without authority and its service void and conferred no jurisdiction, because the petition lacked the proper caption, the defendants entered their special appearance and moved to quash the summons and set aside the service. Pending the consideration of this motion the plaintiff asked and obtained leave to amend the petition by writing at the head of it and above the names of the parties the names of the court and county in which the action was pending. The motion to quash and set aside the service was overruled, the court retained jurisdiction of the parties and subject-matter, and proceeded further in the cause. Defendants at all stages reserved this question, and now present it here as their first assignment of error.
The defendants contend that the statute in question is mandatory, and that the omission from the caption of the petition of the name of the court and county in which the action was brought was fatal to jurisdiction, the statute reading, as it does, that "the petition must contain" these statements, and that their omission would be fatal, as omitting entirely the venue of the action. An analogous question to this was presented in the case of Butcher v. The Bank of Brownsville, 2 Kan. 70, 83 Am. Dec. 446, where it was held that the omission of the word "petition" from the caption, the insertion of which the statute makes equally mandatory, was not fatal, but might be cured by amendment. The defendants could in no way have been misled or prejudiced by the omission of which they complain. The summons fully informed them where the action was pending. All statutes of jeofailes, such as the provisions in our code of civil procedure which permit amendments of any pleading, process, or proceeding at any stage, in furtherance of justice, and require the disregard of errors and defects not going to the substantial rights of parties, amply justify the action of the court. Besides, it will be borne in mind that the names of the court and the county were found upon the petition, not strictly in the caption, but upon the outside, where, for all purposes, they would be quite as efficient as though in the caption itself. We think that the amendment allowed, if any were necessary, was well within the power of the court.
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