Manspeaker v. The Bank of Topeka

• Decision Date: 01 November 1896
• Docket Number: 143
• Citation: 4 Kan.App. 768,46 P. 1012
• Parties: W. W. MANSPEAKER v. THE BANK OF TOPEKA
• Court: Kansas Court of Appeals

46 P. 1012

4 Kan.App. 768

W. W. MANSPEAKER v. THE BANK OF TOPEKA

No. 143

Court of Appeals of Kansas, Northern Department, Eastern Division

November 1, 1896

Opinion Filed December 3, 1896.

MEMORANDUM.--Error from Shawnee circuit court; J. B. JOHNSON judge. Action by The Bank of Topeka against W. W. Manspeaker on a promissory note. Judgment for plaintiff. Defendant brings the case to this court. Affirmed. The opinion herein filed December 3, 1896, states the material facts.

Judgment affirmed.

Edwin A. Austin, for plaintiff in error.

David W. Mulvane, for defendant in error.

GILKESON P.J. All the Judges concurring.

OPINION

GILKESON, P. J.:

The Bank of Topeka filed a petition without signature of plaintiff or attorney, and also a praecipe for summons in like condition. The clerk of the court issued summons, which was personally served upon the defendant, and thereupon defendant filed the following motion:

"Comes now said defendant, appearing specially for the purpose of this motion only, and moves the court: (1) To set aside and to quash the summons and the service thereof for the reason that the same was not issued in pursuance of a written praecipe filed by the plaintiff; (2) to set aside and to quash the summons and the service thereof for the reason that the same was not issued upon any petition filed in the office of the clerk of this court; (3) objecting to the jurisdiction of this court, to set aside and to quash the summons herein and the service thereof and to strike said cause from the docket of said court for the reason that no petition, praecipe or other proper and sufficient pleading by the party or its attorney has been made, signed or filed sufficient to give this court jurisdiction of the case."

The court overruled the motion and permitted the plaintiff to amend its petition by signing the same, and then rendered judgment by default for the amount asked, without new service.

The first error alleged is, that no written praecipe was filed with the clerk of the court.

While we might concede that the praecipe was informal we cannot say that none was filed, and if there had not been, we could not say that it affected the jurisdiction of the court.

"The issuing of summons by the clerk of district court without a praecipe is not an error of which the defendant can complain. . . . It is true that it was the duty of the plaintiff to file a praecipe with the clerk, and until he did so the clerk might have refused to issue a summons and been excused therefor. But as the clerk in this case proceeded to issue the summons required by law, with the proper indorsements thereon setting forth the amount of the plaintiff's claim, we are unable to see how the defendant could be at all prejudiced by the failure of plaintiff to file a praecipe." (Goff v. Russell, 3 Kan. 212, 214.)

In the case at bar a praecipe was filed, but not signed by the attorney or plaintiff. The statute does not require the praecipe to be signed. Would not a praecipe written upon the back of a petition, without signature, and filed with the petition, be a compliance with the statute? We think so.

For a second error, it is alleged that the petition filed was not signed by the plaintiff or its attorney.

The code (§ 87) provides: "The petition must contain: First, the name of the court, and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word 'petition.'" In Butcher v. Bank of Brownsville, 2 Kan. 70, the court held:

"The action of the court in permitting the party to amend by inserting the word 'petition,' which had been omitted, was so manifestly correct that we need not argue it. By the code it is made necessary that the word shall follow the names of the parties to the suit in the caption. When omitted, the court should allow an amendment at any time without delaying the suit, and ought not to sustain a motion to strike it from the files without first at least giving an opportunity to amend. . . . We do not happen to see how it would affect the substantial rights of the adverse party whether the amendment was made or not."

Section 107 of the code is not any stronger: "Every pleading, in a court of record, must be subscribed by the party or his attorney." We think that a failure to sign would be a mere formal defect,...