McLeod v. The Trusler Grain Company

• Decision Date: 08 December 1928
• Docket Number: 28,302
• Citation: McLeod v. The Trusler Grain Company, 272 P. 119, 127 Kan. 119 (Kan. 1928)
• Parties: NEIL MCLEOD, Appellee, v. THE TRUSLER GRAIN COMPANY, Appellant
• Court: Kansas Supreme Court

272 P. 119

127 Kan. 119

NEIL MCLEOD, Appellee, v. THE TRUSLER GRAIN COMPANY, Appellant

No. 28,302

Supreme Court of Kansas

December 8, 1928

Decided July, 1928.

Appeal from Shawnee district court, division No. 1;JAMES A MCCLURE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CORPORATIONS--Venue--County in Which It Has Office.Jurisdiction of a district court over an action against a domestic corporation, having offices in more than one county within the state, is not limited to that county in which the principal office of the corporation is located.Under the provisions of the statutes(R. S. 60-2518andR. S. 60-504) it may be sued and service of summons had upon its chief officer found within any county where it has an office.

W. S. Kretsinger and Roland E. Boynton, both of Emporia, for the appellant.

A. E. Crane, B. F. Messick and A. Harry Crane, all of Topeka, for the appellee.

OPINION

HOPKINS, J.:

The question presented here is whether the district court has jurisdiction of a corporation sued in a county other than where its principal office is located.The trial court held in the affirmative and defendant appeals, raising the one question that the court was without jurisdiction.The facts are substantially these:

The petition recited that the defendant is a corporation existing under the laws of Kansas, having its principal place of business at Emporia, Lyon county, but at the present time has a branch office in the New England building in Topeka, Shawnee county.Summons was issued out of the office of the clerk of the district court of Shawnee county and served by the sheriff, the return showing that it was served "by delivering to L. E. Howard, local manager, highest officer found in my county, November 5, 1925, by delivering to each of said defendants personally a true and certified copy of this summons with all indorsements thereon."Defendant's motion to quash the summons and dismiss the cause reads:

"Comes now the defendant and appearing specially and for the purpose of this motion only moves the court to quash the summons issued in this cause and to dismiss this cause for the reason that this court is without jurisdiction over the defendant."

Thereafter defendant answered, trial was had, with verdict for plaintiff.

Defendant contends that service in Shawnee county upon the local manager of its branch office was without effect; that it appeared specially and for the purpose only of raising the question of jurisdiction; that by asking the court to dismiss the action it did not submit itself to the jurisdiction of the court, and that the fact that it afterwards filed an answer to the merits and tried the case was not a waiver of the question of jurisdiction inasmuch as it asked for no affirmative relief but only that it be allowed to go hence with its costs.On the other hand, the plaintiff contends that there is statutory authority for the summons and service as made and that the defendant submitted itself to the jurisdiction of the court by filing a motion to dismiss the action in addition to its motion to quash summons.

A provision of the statutes reads:

"A summons against a corporation may be served upon the president, mayor chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof."(R. S. 60-2518.)

The return of the sheriff shows that service was made on the highest officer of the defendant in Shawnee county.There is nothing to show but that Howard was the managing...