Newberry v. The Arkansas
| Decision Date | 01 January 1894 |
| Court | Kansas Supreme Court |
| Parties | F. R. NEWBERRY et al. v. THE ARKANSAS, KANSAS & COLORADO RAILWAY COMPANY |
Error from Ford District Court.
ACTION by F. R. Newberry and another against the Arkansas, Kansas & Colorado Railway Company. The service of summons having been set aside, plaintiffs come here. The opinion states the facts.
Judgment reversed and cause remanded.
L. K Soper, for plaintiffs in error.
J. F Frankey, for defendant in error.
OPINION
F. R Newberry and Charles P. Noell filed a petition in the district court of Ford county, alleging that the defendant, the Arkansas, Kansas & Colorado Railway Company, in constructing and operating its railway through and over their premises, threw down their fences and left the premises unfenced and without cattle guards, on account of which corn and fodder were destroyed, and they were required to incur extra expense in the herding of cattle and horses kept within the inclosure, and one cow was killed, whereby they sustained loss and damage to the amount of $ 1,230. A summons was issued, directed to the sheriff of Ford county, which was returned by the sheriff as having been served upon D. M. Frost, the vice president of the company, and, afterward, the return was so amended as to state that he was the chief officer of the company in that county, the nominal president of the company being a nonresident, and no person having been designated by the company, as the law requires, upon whom process could be served. Testimony was offered upon the motion, by which it appeared that the defendant company had leased its entire property to another railroad company, and that it had no clerk or agent in charge of any station or other property, and had made no designation of any person upon whom to serve process. Other testimony was offered with respect to the duties of the vice president of the company and the place where the president resided. On May 16, 1889, the court sustained the motion, and set aside the service of summons. Another summons was duly issued, directed to the sheriff of Clark county, Kansas, commanding him to make service upon C. D. Perry, the president of the defendant company. The return, among other things, stated that a service had been made by leaving "a true copy of the within summons, with all the indorsements thereon, with the wife of the said C. D. Perry, president of the said defendant company, at his usual place of residence." The service was made by the undersheriff of the county. A motion was made to quash the summons and set aside the service, upon the ground that the summons must be served in the county where the action is begun; that it had not been made upon C. D. Perry personally; and that it did not appear that service could not be made in Ford county. On August 7, 1889, the court sustained the motion and set aside the service. Afterward another summons was issued, directed to the sheriff of Clark county, directing service to be made on C. D. Perry, who returned that he had served the summons on September 2, 1889, by delivering a copy thereof, with the indorsements thereon duly certified, to the defendant railway...
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