The Salina National Bank v. Prescott

• Decision Date: 06 May 1899
• Docket Number: 11157
• Citation: 57 P. 121,60 Kan. 490
• Parties: THE SALINA NATIONAL BANK v. MARY E. L. PRESCOTT et al
• Court: Kansas Supreme Court

57 P. 121

60 Kan. 490

THE SALINA NATIONAL BANK v. MARY E. L. PRESCOTT et al

No. 11157

Supreme Court of Kansas

May 6, 1899

Decided January, 1899.

Error from court of appeals, northern department, JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. McELROY, judges.

Judgment affirmed.

Bond & Osborn, and Garver & Larimer, for plaintiff in error.

John D Milliken, and David Ritchie, for defendants in error.

OPINION

SMITH, J.:

A judgment was rendered in the district court in favor of the Salina National Bank against the Lone Star Plaster Company, a corporation, for $ 3127.08. Two executions were issued and returned "no property found." A motion was filed for execution against Mary E. L. Prescott, E. W. Dow, and J E. Miller, stockholders, alleging that they held 113, 52 and 5 shares, respectively, of the capital stock, of the par value of $ 100 each. The stockholders moved against first appeared specially and attacked the judgment rendered against the corporation for the reason that the court rendering the same had acquired no jurisdiction for want of proper service. It appeared that the president of the Lone Star Plaster Company made a voluntary appearance by filing with the clerk of the court a writing which, omitting title of the cause, was as follows:

"The issuance and service of a summons in the above-entitled action is hereby waived, and the said defendant, the Lone Star Plaster Company, hereby enters its voluntary appearance in said action.

THE LONE STAR PLASTER COMPANY.

By J. F. MERRILL, President."

This was filed in vacation, accompanied by the petition in the cause against the company. Defendants in error contend that the judgment based on this service is void for the following reasons: (1) That the entry of appearance conferred no jurisdiction; (2) that the president of the plaster company had no power to waive the issuing of summons. The case of Bradley v. Harwi, 2 Kan.App. 272, 42 P. 411, is cited as conclusive on the first proposition. We do not concur in the rule of that case. When the entry of appearance in the case at bar was filed in court it became at once operative. It can make no difference whether the court was in session or not. A suit was anticipated and the title of the action about to be commenced was mentioned in the paper signed by the defendant. We think it is competent for parties out of court, in anticipation of a suit to be brought, to waive the issuance and service of summons and enter appearance in the cause. The code provides: "An acknowledgment on the back of the summons or the voluntary appearance of a defendant is equivalent to service." (Gen. Stat. 1897, ch. 95, § 64; Gen. Stat. 1889, P 4146.) We do not interpret the words "voluntary appearance of a defendant" to mean an appearance in court in term time, personally or by attorney. It has been the uniform custom, both in the district courts and this court, for defendants to waive in writing the issuing and service of summons and enter their appearance in cases about to be commenced.

It would be overturning a long-continued course of practice to hold that the courts obtain no jurisdiction where appearance is entered in this way. In the case of Freelove v. Gould, 3 Kan.App. 750, 45 P. 454, in discussing whether the filing of a written motion for a new trial within three days after a decision was the making of an application for a new trial, within section 308 of the code (Gen. Stat. 1897, ch. 95, § 318, Gen. Stat. 1889, P 4403), that court used the following pertinent language:

"This construction of the statute has, also, been universally acquiesced in and acted upon by the courts and by the bar of the state, and has become a rule of practice as thoroughly established as if directed by the very letter of the law. The change of construction contended for would not only revolutionize the practice, but would inevitably result in the doing of a grievous wrong to litigants who have acted in reliance upon the established rule. The doctrine of stare decisis is peculiarly applicable under such circumstances, and forbids any innovation at this time."

There could be no question that if the defendant had filed a motion in the cause, either simultaneously with the filing of the petition or afterward, on any other than jurisdictional grounds, his appearance would have been effectually entered in the case. (Burdette v. Corgan, 26 Kan. 102; Packing and Provision Co. v. Casing Co., 34 id. 340, 344, 8 P. 403; Life Association v. Lemke, 40 id. 142, 19 P. 337.)

In the case of Humphries v. Humphries, Morris (Iowa), 473, the defendant indorsed on the complaint these words: "I hereby waive service of process on the within and agree to enter an appearance the first term of the district court for the county of Muscatine." The court held:

"By this indorsement the defendant Humphries not only waived service but agreed to make his appearance to answer at the next term of the court for Muscatine county, thus by his own act obviating the necessity of issuing a summons in accordance with the precipe filed, thereby amicably placing himself in the position of a defendant in the action who had been fully and legally notified by summons." (See also Russell v. Craig, 10 Colo.App. 428, 51 P. 1017.)

Cases to the contrary of this doctrine have been cited by the defendant in error, but we think the better rule is that stated above, which has been uniformly practiced and acquiesced in by the bench and bar of the state for many years. In Bouvier's Law Dictionary, 518, under the title "Appearance" it is said:

"The appearance of the parties is no longer (as formerly) by actual appearance in court, either by themselves or their attorneys, but it must be remembered an appearance of this kind is still supposed and exists in contemplation of law. The appearance is effected on the part of the defendant (where he is not arrested) by making certain formal entries in the proper office of the court expressing his appearance."

The paper signed by the plaster company was, within the meaning of the statute, "the voluntary appearance of a defendant," as effective in all respects as if a formal pleading had been filed in the cause. The intention of the defendant company was apparent from the terms used in the entry of appearance, and we can see no good reason for defeating the object sought to be accomplished.

On the second proposition, the president of the plaster company was the proper person to be served with summons in the cause. (Gen. Stat. 1897, ch. 95, § 65; Gen. Stat. 1889, P 4147.) A waiver of service of summons and the entry of appearance was a substitute for actual service and was binding on the corporation. (City of North Lawrence v. Hoysradt, 6 Kan. 170.) Defendants in error contend that the case last cited is not in point, because it construed a provision of the justices' code which is broader than section 67 above quoted. In our view both provisions are equally comprehensive.

It appeared from the evidence that some of the stockholders were released by the bank from their statutory liability as such by the payment of nominal sums, and it is claimed that the aggregate liability of such stockholders was more than the amount of the judgment rendered in favor of the bank against the plaster company, and that for these reasons we must consider the judgment paid. In one instance, that of J. J Crippen and wife, a liability of about $ 3000 was released in consideration of the payment of $ 75. The argument is that this affected the rights of the defendants in error to compel contribution from other stockholders. This court has held, in Abbey v. Long, 44 Kan. 688, 24 P. 1111, that a...