McFadden v. Mid-States Mfg. Corp.

• Decision Date: 07 November 1953
• Docket Number: MID-STATES,No. 39077,39077
• Citation: 175 Kan. 240,262 P.2d 838
• Parties: McFADDEN v.MFG. CORP., Inc.
• Court: Kansas Supreme Court

Page 838

262 P.2d 838

175 Kan. 240

McFADDEN v. MID-STATES MFG. CORP., Inc.

No. 39077.

Supreme Court of Kansas.

Nov. 7, 1953.

Syllabus by the Court.

Where an action was brought to recover damages for breach of contract against a domestic corporation, a summons which was only directed against and served upon a named individual as general manager of the corporation, and not against the corporation itself, is insufficient to give the trial court jurisdiction of the corporation or meet the requirements of G.S.1949, 60-2501 pertaining to the issuance and service of summons in civil actions.

Alan B. Phares, of Wichita, argued the cause, and Patrick J. Warnick, Henry E. Martz, and Fred J. Gasser, all of Wichita, were with him on the briefs, for appellants.

R. L. Letton, of Pittsburg, argued the cause, and P. E. Nulton, of Pittsburg, was with him on the briefs, for appellee.

WERTZ, Justice.

Plaintiff, Roy A. McFadden (appellant), filed his petition in the district court of Sedgwick county, seeking recovery of damages for an alleged breach of contract against Mid-States Manufacturing Corporation, Inc., sole defendant (appellee), a Kansas corporation with principal and registered offices at Pittsburg, Crawford county. On the same day, plaintiff caused a written praecipe for summons to be filed, directing the clerk of the court to issue summons to or for the defendants, 'Bill Hubbard, General Manager, Mid-States Manufacturing Corp., Inc., a Corp. * * *

Pursuant thereto, summons was issued by the clerk of the court, directed to the sheriff of Sedgwick county, the pertinent portion of which reads: 'You are hereby commanded to notify Bill Hubbard, General Manager, Mid-States Manufacturing Corp., Inc., a Corp. * * * that he has been sued together with _____ by Roy A. McFadden in the District Court * * * and that he must answer the petition filed against him. * * * The Sheriff will make due return of this summons on or before the 20 day of June, A.D. 1952.' (Italics supplied.)

The pertinent portion of the sheriff's return is as follows: 'Received this writ 6/10/52, and as commanded therein, I summoned the following persons, of the defendants within named, at the times following to-wit: Bill Hubbard 6/10/52, by delivering to each of said defendants, personally, in said county, a true copy of the within summons with all the endorsements thereon. * * *'

Thereafter defendant appeared specially and filed its motion to quash the service of summons, contending that the service was defective in that it was not directed to the defendant corporation, nor did it command the sheriff to notify the defendant that it had been sued, and that the purported summons was directed to one Bill Hubbard, not a party defendant to the action.

Thereupon plaintiff filed a motion to allow the sheriff to amend his return pertaining to service of the summons. The trial court after hearing the evidence and arguments by the respective parties overruled plaintiff's motion to amend, and sustained defendant's motion to quash the service of summons. It is from these rulings that the parties appeal.

The determinative question is whether the summons directed to be served, and served upon Bill Hubbard, General Manager, Mid-States Manufacturing Corporation, Inc., and not directed to be served, or served upon the defendant itself, was sufficient to give the trial court jurisdiction over the corporation.

Defendant asserts that plaintiff caused a praecipe for summons to be filed directing the clerk of the court to issue a summons to one Bill Hubbard, General Manager of the mentioned corporation, and that the summons was issued by the clerk, directing the sheriff of Sedgwick county to notify Bill Hubbard, General Manager of the mentioned corporation, that he had been sued by plaintiff, Roy A. McFadden, in the...