Root Grain Co. v. Livengood

• Decision Date: 06 April 1940
• Docket Number: 34674.
• Citation: 100 P.2d 714,151 Kan. 706
• Parties: ROOT GRAIN CO. v. LIVENGOOD.
• Court: Kansas Supreme Court

100 P.2d 714

151 Kan. 706

ROOT GRAIN CO. v. LIVENGOOD.

No. 34674.

Supreme Court of Kansas

April 6, 1940

Rehearing Denied May 10, 1940.

Syllabus by the Court.

A liberal use of acerbic adjectives and adverbs does not serve to strengthen the facts alleged to plead a cause of action or defense.

A litigant is entitled to choose the forum in which he will sue his adversary, and if the forum he selects is one which has jurisdiction of the subject matter and such service of process as the statute requires can be obtained therein, the action cannot be regarded as "fraudulent," "wanton," "malicious," nor as designed to cheat and defraud his adversary.

A defendant whose property has been wrongfully attached may join with his answer to plaintiff's petition, by special leave of court, a supplemental claim for damages for such wrongful attachment, which may be tried along with his defense of the principal action.

A cross-petition for damages for wrongfull attachment filed, in action in which attachment was issued, 3 years, 9 months, 22 days after property was attached was barred by 3-year statute of limitations, regardless of whether attachment of defendant's property was regarded as trespass to real estate, as injury to rights of another or as malicious prosecution of a civil action. Gen. St.1935, 60-306, subds 3, 4, 60-507, 60-901, 60-2525 et seq., 60-2530.

The fact that plaintiff and defendant were nonresidents of Kansas did not preclude statute of limitations from running against defendant's claim, set up in cross-petition, for damages for wrongful attachment, since plaintiff having invoked jurisdiction of the Kansas district court, was amenable to service on any matter pertaining directly or indirectly to subject matter of original action. Gen.St.1935, 60-306 subds. 3, 4, 60-507, 60-901, 60-2525 et seq., 60-2530.

A defendant has 3 years in which to make application to open judgment procured on publication and service, and to be let in to defend against original action, but counterclaim or supplemental claim for damages arising out of the institution of original action or out of anything incidental thereto must be made within regular statutory time. Gen.St.1935, 60-507 60-901, 60-2525 et seq., 60-2530.

Where claim for damages for wrongful attachment of defendant's property is filed in cause of action in which attachment was issued, the claim for damages must be filed within statutory time. Gen.St.1935, 60-306, subds. 3, 4, 60-507, 60-901, 60-2525 et seq., 60-2530.

1. While a claim for damages for wrongful attachment of defendant's property may by leave of court be added to the matter pleaded in defendant's answer to plaintiff's cause of action in which the attachment was issued, such claim for damages must be filed within the time allowed by the Civil Code.

2. An attachment of real property, alleged to be wrongful, was effected on publication service on December 14, 1935. On defendant's application the judgment was opened and he was let in to defend. On May 18, 1939, defendant by leave of court filed an amended cross petition setting up a claim for damages for the alleged wrongful attachment. Held, such claim was barred by the statute of limitations.

Appeal from District Court, Johnson County; Garfield A. Roberds, Judge.

Action by the Root Grain Company against G. W. Livengood to recover on an alleged indebtedness arising out of certain contracts for the purchase of grain, wherein defendant filed a cross-petition. From an adverse judgment, defendant appeals.

C. Clyde Myers, of Kansas City, and Howard E. Payne, of Olathe, for appellant.

Harvey Hartz, of Kansas City, and Rolla W. Coleman, John W. Breyfogle, Jr., and S.D. Scott, all of Olathe, for appellee.

DAWSON Chief Justice.

This was an action to recover on an alleged indebtedness arising out of certain contracts for the purchase of grain.

Plaintiff was a Missouri corporation. Defendant, a non resident of Kansas, was for some time a resident of Colorado and later of Missouri. The action was brought in Johnson county on December 14, 1935. Service was had by publication under G.S. 1935, 60-507, 60-2525 et seq., and certain Johnson county real estate belonging to defendant was attached under G.S.1935, 60-901.

Plaintiff's petition alleged an indebtedness due from defendant and prayed judgment therefor. In default of answer judgment was entered for plaintiff on March 23, 1936. Defendant's land was appraised at $7500 and sold for $4212.65 to satisfy plaintiff's judgment, taxes and interest. Plaintiff was the purchaser. On June 10, 1936, the sale was confirmed and a period of eighteen months for redemption was decreed.

Sometime in July 1937 defendant learned of the foregoing proceedings, and in October of the same year he made application to open the judgment and to be let in to defend under G.S.1935, 60-2530. Therewith he filed an answer in which he denied owing the debt sued on, and alleged that whatever contract the debt was based on was a gambling contract and therefore illegal and void under a cited Missouri statute.

On November 27, 1937, the trial court set aside its judgment and the sale of the property, and permitted issues to be joined on defendant's answer.

On May 2, 1938, defendant filed an amended answer not materially different from its answer of October 1937, but adding thereto a cross petition, the nature of which is not shown but may be inferred from plaintiff's motion directed against it,--that the matters therein pleaded were not a proper set-off or counter claim, that they did not arise out of the contract or transaction sued on by plaintiff and were not connected with its subject matter, and that the matters alleged in the cross petition did not exist when plaintiff's action was begun, and "Seventh: That the attachment mentioned in the defendant's cross petition is in statu quo save and except that the sale of said property has been set aside. That until such time and unless said attachment has been found to be wrongful no cause based upon wrongful attachment can arise."

This motion was overruled. Plaintiff then lodged a demurrer against the cross petition which was sustained on May 1, 1939, and defendant was given 20 days to amend.

Thereafter on May 18, 1939, defendant filed an amended cross petition in which he alleged that he was a resident of Kansas City, Missouri, and had never been a resident of Kansas; that he resided near the officers of the plaintiff company and attended the same church and Sunday School with them and associated with them in society; that at all times he was solvent and able to pay any judgment plaintiff might obtain against him, and that plaintiff knew that fact; but "Notwithstanding all of such facts, plaintiff secretly and without notice to defendant, and in order to secure judgment, attachment of property and execution herein against defendant, without defendant's knowledge, wantonly, maliciously, and without regard to plaintiff's rights, and in order to take advantage of, and to cheat and defraud defendant, left the city and state of the place of residence and place of business of plaintiff and the city and state of the place of abode and place of business of defendant, and wantonly, maliciously, and without regard to defendant's rights, and in order to take advantage of, and to cheat and defraud defendant, secretly, and without notice to defendant, and in order to secure a judgment, attachment of defendant's...