Neal v. Reynolds

• Decision Date: 11 February 1888
• Citation: 16 P. 785,38 Kan. 432
• Parties: MOSES NEAL v. JOHN L. REYNOLDS, et al
• Court: Kansas Supreme Court

16 P. 785

38 Kan. 432

MOSES NEAL v. JOHN L. REYNOLDS, et al

Supreme Court of Kansas

February 11, 1888

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Allen District Court.

THE opinion states the material facts. At the June Term, 1885 the court sustained the motion of defendants to strike out and dismiss the second cause of action inserted in plaintiff's amended petition. Afterward the defendants demurred to the first cause of action in said petition, for the following reasons:

"1. Because so far as said first cause of action alleges facts, and to recover a judgment for money only, the court has no jurisdiction of the persons of defendants, said defendants not residing in nor having been summoned in the county of Allen.

"2. Because the plaintiff shows by his petition that he cannot rescind in toto, he returning to defendants all of the property received by him.

"3. Because said first cause of action does not states facts sufficient to constitute any cause of action against defendants, or either of them."

This demurrer the court sustained as to the first and third grounds stated therein, and overruled it as to the second ground thereof. The plaintiff excepted, and has brought the case to this court.

Judgment affirmed.

G. A. Amos, and L. W. Keplinger, for plaintiff in error;

C. F. Hutchings, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

Two assignments of error are strongly insisted on; the first being the ruling on the motion to strike out and dismiss the second cause of action set out in the amended petition, and the other being the ruling sustaining the demurrer to the first cause of action alleged in the amended petition.

I. The action as originally commenced in the district court of Allen county was one to rescind a real - estate contract, whereby the plaintiff in error exchanged real estate situated in the city of Humboldt, in Allen county, for farming land situated in the state of Missouri. The plaintiff in error (plaintiff below) was a resident of Allen county; the defendants were residents of Lawrence, Douglas county. The exchange had been consummated by the execution of warranty deeds to the property by each of the parties, long before the action was commenced. The action was properly instituted in Allen county, because a part of the property exchanged is situated in that county, (Code, § 46;) and a summons for the defendants issued to and was served by the sheriff of Douglas county. (Code, § 60.) The defendants appeared and filed a demurrer to the petition, but that was overruled, and they then filed an answer. The plaintiff then obtained leave to file an amended petition, and in accordance therewith amended his cause of action for a rescission of the contract, and then added an entirely new cause of action, demanding damages for a breach of the covenants of warranty in the deed by which the defendants conveyed the Missouri lands to the plaintiff in error. A motion was made to strike out and dismiss the second cause of action for damages, for a breach of the covenants of warranty. This was sustained by the court. We think there was no error in such ruling. The action for the cause alleged in the original petition was local, and it was only by reason of that, and that alone, that Reynolds and wife could be compelled to litigate in Allen county, they being residents of Douglas county. Whenever it was sought to depart from the local action and substitute therefor or add thereto an action transitory in its nature, it ought to have been dismissed, because it has been held by this court that the presumption is in such a case that the statement of the original cause of action was made wrongfully, to procure the service of a summons upon the defendants, in violation of the spirit of §§ 46, 55, [38 Kan. 435] and 60 of the code. ( Brenner v. Egly, 23 Kan. 123.) The counsel for plaintiff in error ingeniously contend that when the defendants are rightfully summoned under § 46, and appear and contest allegations with reference to a cause of action, transitory in its nature, blended with those that are local, they have joined in a general fray, and cannot thereafter be heard to object to the mode of attack or the manner of fighting. As...