Stumfoll v. Inman

• Citation: 363 P.2d 443,188 Kan. 553
• Decision Date: 08 July 1961
• Docket Number: Nos. 42326,42327,s. 42326
• Parties: Dollie STUMFOLL and Edward Stumfoll, Appellants, v. Woodrow INMAN, W. E. Mitchell, Freeto Construction Company, a corporation, and Independent Construction Company, a corporation, Appellees.
• Court: United States State Supreme Court of Kansas

Page 443

363 P.2d 443

188 Kan. 553

Dollie STUMFOLL and Edward Stumfoll, Appellants, v. Woodrow INMAN, W. E. Mitchell, Freeto Construction Company,

a corporation, and Independent Construction

Company, a corporation, Appellees.

Nos. 42326, 42327.

Supreme Court of Kansas.

July 8, 1961.

Syllabus by the Court

The record in an action to recover damages sustained in a car-truck collision examined and the statutory definition of the terms 'residence' and 'usual place of residence' (G.S.1949, 77-201, Twenty-third, Twenty-forth) applied to the evidence, and as more fully set forth in the opinion it is held: The service of summons returned as served at defendant Woodrow Inman's usual place of residence was void, and the district court did not err in sustaining the defendants' motions to quash the pretended service of summons.

Pete Farabi, Pittsburg, argued the cause, and Joe L. Henbest, Columbus, was with him on the briefs, for appellants.

Douglas G. Hudson, Fort Scott, argued the cause, and Murvyl M. Sullinger, Pittsburg, and Douglas Hudson and Howard Hudson, Fort Scott, were with him on the briefs, for appellees Woodrow Inman and W. E. Mitchell.

Paul L. Wilbert, Pittsburg, argued the cause, and Randall D. Palmer and E. Carter Botkin, Pittsburg, were with him on the briefs, for appellee Freeto Const. Co.

FATZER, Justice.

These actions were to recover damages for injuries sustained in a car-truck collision. The principal question presented is whether service of summons was properly had upon defendant Woodrow Inman in Cherokee County, Kansas. It is conceded that all other defendants, W. E. Mitchell, Freeto Construction Company, a corporation, and Independent Construction Company, a corporation, hereafter referred to as Mitchell, Freeto, and Independent, were served with summons elsewhere. Hence, if service of summons upon Inman was not proper in Cherokee County the actions cannot be maintained there, but must necessarily be tried in Linn County, Kansas, where identical suits are pending and service of summons has been obtained upon all the defendants. Since both appeals present the identical question, they were ordered consolidated.

The plaintiffs commenced these actions on September 17, 1958, and alleged their injuries resulted from a collision on October 4, 1956, in Crawford County, between an automobile owned by Edward Stumfoll and driven by Dollie Stumfoll, his wife, and a dump truck driven by defendant Woodrow Inman. It was further alleged that Inman was the agent, servant, and employee of defendants Mitchell, Freeto and Independent. The original summons dated September 17, 1958, showed on the return, 'September 27, 1958, I cannot find the following named defendant in my county: Woodrow Inman. s/William M. Crain, Sheriff of Cherokee County, Kansas. By P. L. Grant, Deputy Sheriff.'

An amended petition was filed on September 30, 1958. On the same day an alias summons was issued and a return was made by the deputy sheriff that he served the summons on September 30, 1958, by leaving a certified copy thereof at Inman's 'usual place of residence' (G.S.1949, 60-2507)--'left with Mrs. Dardene, a sister,' who resides at 124 West 13th Street in Baxter Springs.

Special appearances were made by all the defendants who filed separate motions to quash the pretended summons and the pretended service of summons upon the grounds of insufficiency of process and service of process and that the return on the pretended summons was void and of no effect conferring no jurisdiction upon the district court.

On June 30, 1960, a hearing was held on defendant Inman's and Mitchell's motions to quash. The only evidence was by affidavits, and the motions were overruled. On a date not appearing in the record, those defendants filed separate motions to reconsider their motions to quash upon the grounds of accident and suprise, and because of newly discovered evidence.

On July 12, 1960, a hearing was had upon the motions to reconsider and upon Freeto's and Independent's motions to quash the pretended summons and pretended service of summons. Oral testimony and affidavits were presented by the defendants in support of the motions, and plaintiffs presented oral testimony against the motions. Arguments of counsel were made, and the court took the motions under advisement.

On August 5, 1960, the court, after considering the oral testimony and affidavits and briefs submitted by the parties, found that the motions to reconsider should be sustained and the previous order of June 30, 1960, should be set aside, and that all motions to quash should be sustained. Judgment was entered quashing the pretended praecipe of summons, the pretended summons, and the pretended service of summons upon Inman and upon the other nonresident defendants of Cherokee County. Hence, these appeals.

The judgment quashing the service of summons imports a general finding in favor of the defendants which determined every controverted question of fact in support of which evidence was introduced, and raises the presumption that all facts necessary to sustain and support the judgment were found (Dryden v. Rogers, 181 Kan. 154, 157, 309 P.2d 409; Smith v. Smith, 186 Kan. 728, 730, 731, 352 P.2d 1036). Consequently, the sole question presented is whether there was substantial evidence to support the district court's finding that Inman was not served with summons by leaving a copy thereof at his 'usual place of residence.' The evidence was conflicting and we deem it unnecessary to narrate all the testimony. In harmony with the well-established rule that the supreme court will not weigh conflicting evidence nor pass upon the credibility of witnesses in determining whether findings are supported by substantial evidence (Wilsey State Bank v. Amend, 107 Kan. 25, 190 P. 739; Brown v. Brown, 146 Kan. 7, 68 P.2d 1105; Mann v. Staatz, 156 Kan. 275, 133 P.2d 103; Rupp v. Rupp, 170 Kan. 651, 228 P.2d 692; State Farm Mutual Automobile Ins. Co. v. Cromwell, 187 Kan. 573, 576, 358 P.2d 761; Sutherland v. Sutherland, 187 Kan. 599, 603, 358 P.2d 776; 1 Hatcher's Kansas Digest, Appeal and Error, §§ 504, 505, 507 and 508), we review the record to ascertain whether there was evidence which supports or tends to support the finding that Inman's residence was not at his sister's home at 124 West 13th Street, in Baxter Springs. In our review, a consideration or recital of the contradictory evidence would not aid in correctly determining that question (Martin v. Hunter, 179 Kan. 578, 584, 297 P.2d 153; Huebert v. Sappio, 186 Kan. 740, 742, 352 P.2d 939).

Pertinent parts of the testimony are summarized: Inman was a single man 47 years of age, and both he and his sister, Mrs. Dardene, testified that he did not reside at her home in Baxter Springs on September 30, 1958. Inman first learned these actions had been commenced in Cheroke County when he visited Mrs. Dardene over a weekend in 1958 and she gave him the summons. He testified that on September 30, 1958, he was living in an apartment in Arkansas City where he was employed and that he had resided there for a year and a half to two...