Reynolds v. Fleming

• Decision Date: 01 January 1883
• Parties: ROBERT M. REYNOLDS v. W. J. FLEMING
• Court: Kansas Supreme Court

1 P. 61

30 Kan. 106

ROBERT M. REYNOLDS v. W. J. FLEMING

Supreme Court of Kansas

January 1, 1883

Error from Jackson District Court.

ON the 20th day of September, 1880, W. J. Fleming commenced an action against W. M. C. Reynolds and Robert M. Reynolds, upon two promissory notes, one dated July 1, 1879, executed by W M. C. Reynolds for $ 86.20, due three months after date, for work done on a dwelling house situated upon certain real estate in Jackson county, belonging to Robert M. Reynolds the other dated July 9, 1879, executed by W. M. C. Reynolds for $ 359.80, due six months after date, for building material used in the construction of the dwelling house and improvements on the same real estate. The petition also set forth the filing of a mechanics' lien to secure the labor done and the material furnished, and prayed for a foreclosure of the lien and a sale of the real estate therein described. No service of summons, actual or constructive, was had upon Robert M. Reynolds; but on December 17, 1880, one J. S Hopkins, an attorney at law of Holton, Jackson county, filed an answer in the action, and signed himself as attorney for R. M. Reynolds, which answer contained an admission that R M. Reynolds was the owner of the real estate described in the petition, a general denial of all the allegations of the petition, and alleged that W. M. C. Reynolds was not the agent of Robert M. Reynolds at the time of the alleged contract for the furnishing of the material and work done, or at the time of the execution and delivery of the notes sued on; and also alleged that he had never been his agent to execute the notes, or to have any work or labor performed upon the premises, or to contract for the same. The answer further alleged that W. M. C. Reynolds had no right, title or interest to the lands described in the petition, except the right to cultivate the same for his own use, and to remain thereon as long as Robert M. Reynolds consented. On the 12th day of June, 1882, the action came on for trial. The plaintiff appeared in person and by his attorneys, Broderick & Rafter; judgment was rendered in favor of the plaintiff against the defendant W. M. C. Reynolds for the sum of $ 619.60 and costs. It was further adjudged that the amount of the judgment was a lien upon the premises, and a decree was entered ordering the same to be sold to satisfy the judgment, interest, and costs. On November 6, 1882, R. M. Reynolds filed his motion to set aside and vacate the judgment as to himself, for the alleged reason that the court had no jurisdiction over his person or property, because, as he alleged, he had never been served with summons, either actual or constructive, and never entered any appearance. This motion was heard at the November Term of the district court for 1882, when the court made and filed the following findings of fact:

"1. On the 20th day of September, 1880, W. J. Fleming commenced an action to foreclose a mechanics' lien on the southeast quarter of the southeast quarter of section twenty-one (21), township five (5), range sixteen (16), and at the June term, 1882, he recovered a judgment against W. M. C. Reynolds, which judgment was declared a lien upon the lands (the legal title of said lands being in Robert M. Reynolds) for the sum of five hundred and nineteen 60/100 dollars ($ 519.60), and a decree ordering the lands above described to be sold, and the proceeds of said sale to be applied on said judgment and the costs of this action.

"2. The said R. M. Reynolds was not served with summons in said action.

"3. He is a non-resident of the state of Kansas, and no service was obtained by publication as required by law.

"4. The said Robert M. Reynolds appeared in said action by John S. Hopkins, his attorney."

Thereupon the court held as a conclusion of law, that it had jurisdiction of the person of R. M. Reynolds. He excepted to the findings of fact and the conclusion of law, and also to the overruling of his motion to vacate the judgment, and brings the case here.

Judgment reversed and cause remanded.

Keller & Osterhold, for plaintiff in error.

Broderick & Rafter, and Hayden & Hayden, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The evidence introduced upon the hearing of the motion of Robert M. Reynolds to set aside and vacate the judgment rendered against him on the 12th of June, 1882, material for our consideration, is in brief, that John S. Hopkins, an attorney at law, in a conversation with Case Broderick, one of the attorneys of W. J. Fleming, about the time the action of Fleming against Reynolds was commenced, said to Broderick to save the expense of' publication he thought that Robert M. Reynolds would enter an appearance; that Hopkins filed an answer in the case for W. M. C. Reynolds, and on December 17, 1880, filed another answer and signed himself as attorney for R. M. Reynolds; that he filed the answer for W. M. C. Reynolds, because the latter requested him to attend to the matter for him; that W. M. C. Reynolds told him to stop proceedings against his brother, but at the same time said he was not the agent for his brother and had no authority to contract for him; that after he filed the answer to which he attached his name as attorney for R. M. Reynolds, he sent a copy of it to R. M. Reynolds at Washington, D. C., but Reynolds never returned this copy; instead thereof he sent Hopkins a letter, in which he informed him he had not authorized his brother to act for him, and that he refused to have anything to do in the matter; that after Hopkins received this letter from Robert M. Reynolds, which was shortly after sending him a copy of the answer, and before the trial, he told Broderick he had nothing further to do with the case, and would not appear further for Robert M. Reynolds. Hopkins also testified that he said to Broderick before the trial, "He had better proceed to get service by publication." Broderick testified that "Hopkins told him the reason he had nothing further to do with the case was on account of fees, and he did not recollect that Hopkins said to him anything about publication subsequent to the filing of the answer."

W. M C. Reynolds testified that he advised his brother Robert M. Reynolds of the commencement of the suit, soon after it was begun. Robert M. Reynolds testified that he owned the real estate decreed to be sold to satisfy the judgment rendered on said June 12th, and that he resided at Washington, D. C.; had lived there for four years, but was in Kansas sometime in 1879; that he never employed W. M. C. Reynolds, his brother, to act as his agent in getting legal advice or counsel, or to employ an attorney, in the action of W. J. Fleming against himself; that he never filed an answer in the case, or authorized any one to make answer for him; that he utterly refused to make answer to the proceeding, and that the answer filed by Hopkins was done so without his authority, or knowledge, or consent; that when he received a letter from Hopkins inclosing a paper to be signed as an answer in the case, he promptly replied by saying he utterly refused to become a party to the proceedings, and refused to sign or return the paper; that he then notified Hopkins he could not recognize him as his attorney in the case, and since that time he has never written to him or spoken to him about the matter; that Hopkins has not presented his bill for alleged legal services, and that he had not paid him in any way whatever; that he was never notified by Hopkins that he had filed any paper in the proceeding as his agent or attorney, and at no time did Hopkins apprise him of his appearing for him, and that he did not understand an answer was filed in the case until apprised of it by Keller & Osterhold, attorneys at law, subsequent to the rendition of the judgment; that the first notice he had of the judgment against himself was the notice...