McConnell v. Hicks

• Decision Date: 05 April 1902
• Docket Number: 12,546
• Parties: J. A. MCCONNELL v. T. F. HICKS et al
• Court: Kansas Supreme Court

68 P. 651

64 Kan. 828

J. A. MCCONNELL v. T. F. HICKS et al

No. 12,546

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Error from Rice district court; ANSEL R. CLARK, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

JUDGMENT--Jurisdiction Obtained by Fraud--Case Distinguished. The non-resident payee and owner of a promissory note, to which its maker had a good defense, entered into a collusive agreement to confer apparent jurisdiction to enter judgment on the note upon a court in this state, located at a great distance from the residence of the maker, for the purpose of depriving the latter of the opportunity to defend. In pursuance of such agreement the payee made a colorable indorsement of the note procured a non-resident of the state to make a colorable guaranty thereon, and caused suit to be brought thereon in said court in the name of the indorsee against the maker and such guarantor. Upon the request of the payee, a domestic summons issued to the guarantor, which the payee carried into a foreign state and there procured the guarantor to accept service thereon in such manner that the court would presume, from an inspection, that it was done in the county where suit was brought. Thereafter the payee procured a summons to be served on the maker in the county of his residence, and upon such service judgment was rendered by default against the maker, who, at the time, was ignorant of the fraud practiced upon him, and the action as to the guarantor was dismissed. Held, that such judgment is collusive, fraudulent, and void for want of jurisdiction, and the enforcement of it by execution in the hands of the payee of the note will be enjoined. The case of Hendrix v. Fuller, 7 Kan. 331, distinguished.

John D. Millikin and C. F. Foley, for plaintiff in error.

Sutton, Maher & Sutton, for defendants in error.

POLLOCK J. All the Justices concurring.

OPINION

POLLOCK, J.:

This case comes to this court to review a judgment of the district court entered against plaintiff in error upon the sustaining of demurrers to his amended petition for injunction to restrain the collection of a judgment entered against him by default in the district court of Wyandotte county, wherein one H. F. James was plaintiff, and one H. H. Walkup and plaintiff in error were defendants, which judgment was transferred to defendant in error the Plano Manufacturing Company.

The facts alleged are, that plaintiff in error, a citizen and resident of Rice county, had executed to the Plano Manufacturing Company, a foreign corporation, citizen and resident of the state of Illinois, his promissory note; that while this note was still owned and held by the manufacturing company a settlement of the indebtedness evidenced thereby was made between McConnell and the manufacturing company, which settlement, it is alleged, constituted a good and valid defense to the note; that the manufacturing company, James and Walkup entered into a fraudulent conspiracy for the purpose of conferring upon the district court of Wyandotte county apparent jurisdiction of the person of McConnell and the subject-matter of the action, in order to deprive McConnell, who lived at a distance of 200 miles from said court, from making his defense in said action; that in pursuance of said fraudulent conspiracy the manufacturing company made a colorable indorsement of the promissory note to said James, and procured said Walkup to make a colorable indorsement upon said note guaranteeing payment thereof; that thereupon an action was commenced in the district court of Wyandotte county wherein James was made party plaintiff and Walkup and McConnell parties defendant; that a domestic summons was procured from the clerk of said court directed to the sheriff of Wyandotte county, but that the same was not delivered to said sheriff but was carried into the state of Missouri, and, in pursuance of said scheme, Walkup, in Missouri, indorsed on said summons the following words: "State of Kansas, Wyandotte county. I hereby acknowledge due personal service of the within summons, this 30th day of September, 1897.--H. H. WALKUP"; that upon the filing of said summons with the clerk of the district court of Wyandotte county a summons was procured to be issued to the sheriff of Rice county, which summons was served on McConnell; that neither McConnell nor Walkup made any defense to said action or any appearance in the district court of Wyandotte county, and a judgment by default was entered against McConnell therein; that, at the time, McConnell did not know of the colorable and fraudulent transfers of the paper made, and fraudulent acts alleged to have been committed in attempting to confer jurisdiction on said court; that thereafter the plaintiff in said action, James, without consideration, and in pursuance of the fraudulent conspiracy to deprive McConnell of his right of defense, pretended to transfer said judgment, so rendered, to the manufacturing company, which caused execution to issue thereon, directed to the sheriff of Rice county, Hicks, who levied on and was about to sell, at the date of the commencement of this action, a large amount of personal property of McConnell in satisfaction of said execution.

Upon this state of facts, counsel for plaintiff in error make two contentions: (1) That the judgment sought to be enforced is void for want of jurisdiction in the district court of Wyandotte county over the person of plaintiff in error to render it; (2) that the judgment is absolutely void for fraud practiced in its procurement. If either or both of these propositions, considered separately or together, are tenable the action of the trial court in overruling the demurrers lodged against the amended...