Rome Mfg. Co. v. State Highway Commission

• Decision Date: 09 March 1935
• Docket Number: 32049.
• Citation: 141 Kan. 385,41 P.2d 761
• Parties: ROME MFG. CO. v. STATE HIGHWAY COMMISSION.
• Court: Kansas Supreme Court

41 P.2d 761

141 Kan. 385

ROME MFG. CO. v. STATE HIGHWAY COMMISSION.

No. 32049.

Supreme Court of Kansas

March 9, 1935

Syllabus by the Court.

Venue of action against state highway commission is in Shawnee county, except as to matters with regard to which a statute specifically provides that action against commission may be brought elsewhere (Rev. St. Supp. 1933, 68--419).

State highway commission held not "corporation" upon which summons could be served by serving one of its employees (Rev. St. 1923, 60--2518).

Replevin action could not be maintained against state highway commission, where not predicated on contract which commission was authorized to make.

1. The venue of an action against the state highway commission is in Shawnee county, except as to those matters in which the Legislature has specifically provided an action against it may be brought elsewhere.

2. The state highway commission is not a corporation in the sense that would authorize the service of summons upon one of its employees under R. S. 60--2518.

3. An action against the state highway commission is in effect an action against the state. The state has given its consent to be sued in an action against the state highway commission for certain purposes only. It has not given general leave for all actions to be brought against it, and has not consented that a replevin action, not predicated on a contract which the state highway commission is authorized to make, may be brought against it.

Appeal from District Court, Sedgwick County, Division No. 4; I. N Williams, Judge.

Action by the Rome Manufacturing Company, a division of Revere Copper & Brass, Inc., against the State Highway Commission of the state of Kansas. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Wint Smith, Asst. Atty. Gen., and Henry E. Martz, of Topeka, for State Highway Commission.

Roy P Swanson, of Kansas City, Mo., and Benj. F. Hegler and A. V Roberts, both of Wichita (Arthur S. Evans, of Rome, N. Y., of counsel), for appellee.

HARVEY Justice.

This is an action in replevin brought in Sedgwick county. From the petition it appears plaintiff is a foreign corporation; that in January, 1930, at Kansas City, Mo., it sold to Mrs. F. C. Baird a certain motor grader for which she gave notes for future payments; that by the written contract of sale title to the grader was retained by plaintiff until the notes were paid; that Mrs. Baird never had paid any of the notes, and that by reason thereof plaintiff is the owner and entitled to the possession of the grader; "that it has demanded the same of the defendants, which demand has been refused and that the defendant wrongfully detains the same."

Mrs. Baird resides in Wyandotte county. A summons for her was sent to the sheriff of that county and served upon her. We are told that she entered her appearance in the action and gave a redelivery bond, but we are not concerned on this appeal with any question as between plaintiff and Mrs. Baird, or as between Mrs. Baird and the state highway commission.

Plaintiff attempted to get service on the state highway commission in two ways: (1) It caused summons to be issued in Sedgwick county and served by the sheriff of that county on a section man or section foreman employed by the state highway commission in Sedgwick county, where it had a warehouse and shops. (2) It caused a summons to be mailed to the sheriff of Shawnee county, where the headquarters of the state highway commission are, and this was served on the director of highways.

The state highway commission appeared specially and moved the court to quash the summons and the service thereof on the grounds that the action was not properly brought in Sedgwick county, and the attempted service in Shawnee county was of no effect. This motion was overruled. The state highway commission...