Marshall v. Company

• Decision Date: 06 April 1907
• Docket Number: 14,812
• Citation: 75 Kan. 445,89 P. 905
• Court: Kansas Supreme Court
• Parties: A. MARSHALL v. THE SALINE RIVER LAND & MINERAL COMPANY et al

89 P. 905

75 Kan. 445

A. MARSHALL v. THE SALINE RIVER LAND & MINERAL COMPANY et al

No. 14,812

Supreme Court of Kansas

April 6, 1907

Decided January, 1907.

Error from Ellis district court; JAMES H. REEDER, judge.

Judgment reversed and cause remanded.

SYLLABUS

1. PRACTICE, DISTRICT COURT--Joinder of Actions. A cause of action against one party on a lease and one on a separate and distinct writing wherein another party guarantees that a certain part of the rent under the lease will be paid cannot be joined in a single action.

2. JURISDICTION--Service of Summons--Joinder of Parties. In such a case the service of summons upon one defendant in the county where the action is brought does not authorize the service of a summons upon the other defendant in another county.

3. JURISDICTION--Issuance of Process to a Foreign County. To justify the issuance of a summons to a foreign county and the service of the same upon a defendant residing or found there the action must be rightly brought and the persons sued must be rightly joined as defendants.

Z. C Millikin, and George D. Abel, for plaintiff in error.

OPINION

JOHNSTON, C. J.:

The Saline River Land & Mineral Company leased a tract of land known as the Barnes ranch to Gilbert Brothers at an annual cash rental of $ 2500 for a term of five years, beginning April 1, 1902. On October 1, 1903, Gilbert Brothers entered into an agreement with Marshall & Toliver, of Lincoln county, Kansas, allowing them to stock and use the leased premises for a certain price per head for the cattle that should be pastured and fed there. The arrangement was to continue for three years, but it was stipulated that it might be sooner abandoned by mutual consent. In this agreement no mention was made of the Saline River Land & Mineral Company, which owned the ranch, nor of its lease to Gilbert Brothers. Some time later Mr. Toliver, of the firm of Marshall & Toliver, wrote the following letter to the company:

"N. TOPEKA, KAN., October 6, 1903.

"The Saline River Land & Mineral Company, Rochester, N. Y.:

"GENTLEMEN--Mr. Gilbert advises me that he has had some correspondence with you in regard to the lease on the Barnes ranch, and requests me to give you some information on this line as to the interests that Mr. Marshall and myself have in the matter. A brief statement of the facts is that we have agreed with Mr. Gilbert to stock the ranch for a term of three years (unless sooner dissolved by mutual consent) with not more than 800 head of cattle, and to allow him fifty cents per month for the care and keeping of this ranch and cattle. Mr. Gilbert requests that out of any money due him we shall first pay you the rent due you under the lease, to wit, $ 2500 per year, beginning October 1, 1903, and an additional sum of $ 300 per year for the three years, which total sum of $ 900 he represents is now due you from him. If the payments as above enumerated are satisfactory to you, we will make such payments to you direct, as the same accrue under their lease with you, and pay you the additional sum of $ 300 per year for the three years as it accrues under our contract with Gilbert Brothers, the first payment accruing on October 1, 1904.

(Signed) JOSEPH I. TOLIVER."

In November, 1904, a little more than a year after Marshall & Toliver entered into the contract with Gilbert Brothers, the company brought an action in Ellis county against Gilbert Brothers, the lessees, and joined Marshall & Toliver with them as defendants, asking for the recovery of unpaid rent to the amount of $ 2800. The petition contained two causes of action--one against all of the defendants for $ 2500, and the other against Marshall & Toliver for $ 300. A summons was issued and served on a member of the firm of Gilbert Brothers in the county in which the action was brought, and another summons was issued and sent to the sheriff of Lincoln county and there served upon A. Marshall. No other service was made, and the only defendant who appeared in the action was Marshall, who made a special appearance to question the validity of the service upon him. His motion to quash the service was based on the ground that he was not rightly sued in Ellis county, but the motion was denied, and of this ruling complaint is made.

This was an ordinary transitory action brought for the recovery of money. Such an action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned. (Code, § 55; Gen. Stat. 1901, § 4485.) In some cases one or more defendants may be summoned in a county other than that in which the action is begun, but this cannot be done unless the action is rightly brought against such defendants. (Code, § 60; Gen. Stat. 1901, § 4490.) It is not enough that a person be named as one of the defendants in an action, but he must be rightly sued with the other defendants in such action. In other words, the non-resident defendant must be rightly joined with the resident defendant or with the one served in the county in which the action is brought. (Brenner v. Egly, 23 Kan. 123; Rullman v. Hulse, 32 Kan. 598, 5 P. 176; Rullman v. Hulse, 33 Kan. 670, 7 P. 210; McConnell v. Hicks, 64 Kan. 828, 68 P. 651.)

In the case of Stull Bros. v. Powell, 70 Neb. 152, 97 N.W 249, it was ruled that " to authorize summons to another county in a merely personal action for money, there must be an actual right to join the resident and non-resident defendants." (Syllabus.) It was held by the supreme court of Kentucky, in Basye v. Brown, &c., 78 Ky. 553, that service of process on one improperly joined as a defendant gives the court no jurisdiction to render judgment...