McKenna v. Cooper

• Decision Date: 10 April 1909
• Docket Number: 15,945
• Citation: 79 Kan. 847,101 P. 662
• Parties: EDWARD MCKENNA v. S.W. COOPER
• Court: Kansas Supreme Court

101 P. 662

79 Kan. 847

EDWARD MCKENNA v. S.W. COOPER

No. 15,945

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Kingman district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WORDS AND PHRASES--"Process"--Notice to Obtain Service by Publication. The notice employed in obtaining service by publication is not process within the meaning of section 17 of article 3 of the constitution or of section 700 of the civil code. It need not bear the style "The State of Kansas," need not bear the seal of the court in which the action is pending, and need not be signed or issued by the clerk of such court.

John McKenna, for plaintiff in error.

George L. Hay, for defendant in error.

OPINION

BURCH J.:

In this case Cooper, the plaintiff, claiming title under a sheriff's deed, recovered in ejectment against McKenna, who claimed under a tax deed. The tax deed was invalid, and the material question is whether the sheriff's deed established title sufficient to authorize a recovery by the plaintiff.

The sheriff's deed was issued pursuant to foreclosure proceedings based upon service by publication, and it is claimed the affidavit and notice are defective in substance. It is not necessary to discuss their validity in this respect. The attack made on them is collateral, and they stand within the principles applied in the case of Sharp v. McColm, ante, p. 772.

It is further claimed that the notice is void because it does not have the form of process, which must run in the name of the state and bear the signature of the clerk and the seal of the court from which it issues.

"The style of all process shall be 'The State of Kansas,' and all prosecutions shall be carried on in the name of the state." (Const. art. 3, § 17.)

"The style of all process shall be 'The State of Kansas.' It shall be under the seal of the court from whence the same shall issue, it shall be signed by the clerk, and dated the day it is issued." (Civ. Code, 700.)

The word "process" has many meanings. In its broadest sense it comprehends all proceedings to the accomplishment of an end, including judicial proceedings. Frequently its signification is limited to the means of bringing a party into court. In the constitution process which at the common law would have run in the name of the king is intended. In the code process issued from a court is meant.

The legislature may authorize steps to be taken involving the use of process the equivalent of that which was known to the law of England and which formerly ran in the name of the king. If this be done such process must bear the style of the sovereignty--"The State of Kansas." But the legislature in its discretion may authorize steps to be taken involving the use of other means than process in the strict sense. Notices not issuing from the court itself, but given by some executive officer or interested person, may be employed, and in such case the form of process is not essential, although persons or property be subjected to the jurisdiction of a court. Notices in proceedings by executors, administrators and guardians to sell real estate are not process. The treasurer's notices relating to the sale and conveyance of land for taxes are not process, although the sovereignty of the state is intimately concerned. In some states the original summons to the defendant in an action is a mere notice by the plaintiff's attorney, and hence is not process in the sense of constitutional or statutory provisions prescribing the style and requisites of process.

"But we think a summons is not process within the meaning of section 14, article 6, of our state constitution. It is merely a notice given by the plaintiff's attorney to the defendant that proceedings have been instituted, and judgment will be taken against him if he fails to defend. This notice is not issued out of or under the seal of the court, or by the authority of the court, or any judicial officer. The fact that the court acquires jurisdiction by its service does not prove it process, for it is competent for the legislature to provide that the court shall acquire jurisdiction by the service of the complaint without a summons, or in any other manner by which the defendant may be notified that proceedings have been instituted against him. 'Process,' in a large acceptation, is nearly synonymous with proceedings, and means the entire proceedings in an action from the beginning to the end. In a stricter sense it is applied to the several judicial writs issued in an action. 7 Comyn's Dig. 120; 3 Black. Com. 279 et seq.; Bouvier's Law Dic. In this last sense it is manifestly used in the constitution, and when used in this sense we believe it...