National Bank of Topeka v. Mitchell

• Decision Date: 08 November 1941
• Docket Number: 35181.
• Parties: NATIONAL BANK OF TOPEKA et al. v. MITCHELL et al.
• Court: Kansas Supreme Court

118 P.2d 519

154 Kan. 276

NATIONAL BANK OF TOPEKA et al. v. MITCHELL et al.

No. 35181.

Supreme Court of Kansas

November 8, 1941

Syllabus by the Court.

Where there is entire lack of jurisdiction, the question may be raised at any time, even for first time on appeal.

If lack of jurisdiction appears to court at any time, it is the duty of the court to recognize it even though no objection has been made.

Where action for breach of contract was instituted against a nonresident by attachment of his alleged property in state with service of summons by publication, following the filing of a general demurrer by the nonresident, he died and an executor of his estate in Oklahoma was appointed, and thereafter plaintiffs sought to revive the action against the foreign executor, and there was no property in the state belonging to the nonresident at the time of his death and none belonging to his estate when revivor of the action was sought, the court was without jurisdiction to revive the action against the foreign executor. Gen.St.1935, 60-3202 60-3207, 60-3211; Gen.St.Supp.1939, 59-1708; U.S.C.A.Const art. 4, § 1.

Civil action for damages was brought in this state against a nonresident. Property in this state, alleged to belong to defendant was attached and service by publication made upon the defendant. Following a general demurrer by defendant here treated as a general appearance, the defendant died. An executor of his estate in Oklahoma was there appointed. Sometime thereafter plaintiffs sought to revive the action as against the foreign executor. There was no property in this state belonging to the defendant at the time of his death and none belonging to his estate when revivor of the action was sought.

Held, the Kansas court was without jurisdiction to revive the action against the foreign executor.

Appeal from District Court, Shawnee County, Division No. 2; Paul H. Heinz, Judge.

Action for damages by the National Bank of Topeka, a corporation, and others against J. N. Mitchell and others. While the action was pending, a defendant died and the plaintiffs sought to revive the action against the First National Bank and Trust Company of Oklahoma City, Oklahoma, executor of the estate of S. A. Apple, deceased. From a judgment refusing to revive the action, the plaintiffs appeal.

Clayton E. Kline, M. F. Cosgrove, Balfour S. Jeffrey, Robert E. Russell, John S. Dean, and Barton E. Griffith, all of Topeka, and James S. Twyford and Solon W. Smith, both of Oklahoma City, Okl., for appellants.

Edward Rooney and Jacob A. Dickinson, both of Topeka, and F. A. Rittenhouse, John F. Webster, Walter D. Hanson, and Mart Brown, all of Oklahoma City, Okl., for appellee.

HOCH Justice.

This appeal presents a question of jurisdiction. A civil action for damages was begun against a nonresident by attachment of property in this state with service of summons by publication. After motions of the defendant attacking the validity of the attachment and the service were overruled he filed a general demurrer. While the action was pending the defendant died and an executor was named in Oklahoma to administer his estate in that state. Sometime thereafter the plaintiffs sought to revive the action as against the Oklahoma executor. At the time of his death the defendant had no property in this state and there was none here belonging to his estate when the revivor was sought. The trial court held it had no jurisdiction to revive the action and plaintiffs appeal.

There were many pleadings and procedural steps but the situation may be sufficiently presented by brief recital.

In June, 1933, appellants entered into a contract with one S. A. Apple and others for the exchange of 1164 shares of insurance company stock for Oklahoma improvement bonds having a par value of $203,000. The contract gave appellants an option to surrender a part of the improvement bonds, having a par value of $97,000, together with $3,000 in cash, and to receive in return bonds of the Hays Hotel Company having a par value of $100,000. The exchange of insurance company shares for the Oklahoma bonds was made. The shares appear to have been delivered to one Mitchell, then living in Topeka as trustee for Apple and other co-parties to the contract. From here on we need be concerned only with the story as it relates to Apple.

Sometime in 1934 appellants filed an action in Shawnee county for breach of the contract on the ground that defendants had refused to honor the option clause and exchange Hays Hotel Company bonds for the Oklahoma bonds. They asked damages in the sum of $87,300.

Apple was a resident of Oklahoma. The shares of stock held by Mitchell as trustee were attached on April 13, 1934, and service of summons upon Apple was by publication. Apple entered special appearance by motions to quash and to dissolve attacking the validity of the service and the attachment. The motions were overruled. To an amended petition Apple filed a general demurrer which was overruled on February 25, 1936. On June 3, 1936, Apple filed his separate answer "appearing specially" reserving the question of jurisdiction. For reasons undisclosed by the record, the action was not further prosecuted during the life time of Apple. On December 3, 1939, Apple died having at no time been a resident of Kansas. At the time of his death he had no property in Kansas. On February 19, 1940, appellants filed a motion to revive the action and to substitute as a defendant the First National Bank and Trust Company of Oklahoma City, which had been named executor of Apple's estate in Oklahoma. It is agreed there was no property in Kansas belonging to the estate.

On March 23, 1940, the Oklahoma executor entered a special appearance, asserted that the court was without jurisdiction and objected to revivor. The objections were overruled and the action ordered revived on March 23, 1940. No appeal was taken from this order of revivor but on April 30, 1940, the appellants filed a second amended petition and again the appellee appeared specially, asserting no jurisdiction. It also answered, protecting in the answer its plea of non-jurisdiction.

The action came on for trial on December 3, 1940. Appellee objected to the introduction of evidence, again on the ground that the court was without jurisdiction. From the order sustaining the objection this appeal was taken.

First, as to the action against Apple. Appellants contend that his general demurrer amounted to a general appearance. While appellee opposes this contention, it submits no argument or authorities on the question and we shall here treat Apple's demurrer as a general appearance.

Appellee objected to the introduction of evidence for the following reasons:

"(1) That the court is without jurisdiction to determine the issues involved in this action.

"(2) That under Section 1, Article 4, of the Constitution of the United States, full faith and credit must be given to the orders and decrees, jurisdiction and power of the county court of Oklahoma county, Oklahoma, in the matter of the handling of the estate of S. A. Apple, deceased.

"(3) That the letters of administration issued to the First National Bank and Trust Company of Oklahoma City, as executor under the will of S. A. Apple, deceased, conferred no power or powers upon said executor beyond the limits of the state of Oklahoma, and this court cannot, by service by publication, or otherwise, bring said executor before this court.

"(4) That no ancillary proceedings in the matter of the estate of S. A. Apple, deceased, have been instituted in Shawnee county, Kansas, or in any other county in the state of Kansas, and that only through ancillary proceedings could the cause of action, if any, which was pending against S. A. Apple prior to his death, be revived by this court. That the court was without jurisdiction to revive this action against the Oklahoma executor."

It is not contended that the action is one which would abate under G.S.1935, 60-3202, or that the action might not be revived, as to residents, under G.S.1935, 60-3207. Appellee does not contend that the procedure provided for revivor by G.S.1935, 60-3211 was not followed, nor does it question the validity of G.S.1939 Supp., 59-1708 which provides:

"A fiduciary duly appointed in any other state or country may sue or be sued in any court in this state, in his capacity of fiduciary, in like manner and under like restrictions as a nonresident may sue or be sued."

As to the latter section, appellee contends that the same conditions and limitations pertaining to service, applicable to foreign fiduciaries in like manner as to nonresidents generally, apply where revivor is sought the same as to original service.

Appellants rely largely upon the fact that the revivor section (60-3211) is without qualification in its terms, that it makes no...