Thompson v. Greer

• Decision Date: 09 March 1901
• Docket Number: 11,749
• Parties: R. S. THOMPSON v. J. F. GREER
• Court: Kansas Supreme Court

64 P. 48

62 Kan. 522

R. S. THOMPSON v. J. F. GREER

No. 11,749

Supreme Court of Kansas

March 9, 1901

Decided January, 1901.

Error from Butler district court; C. W. SHINN, judge.

Judgment affirmed.

Martin & Roberts, for plaintiff in error.

J. T Lafferty, for defendant in error.

SMITH J. POLLOCK, J., not sitting, having been of counsel.

OPINION

SMITH J.:

This was an action brought in the district court of Butler county by J. F. Greer against the plaintiff in error to recover the sum of $ 1000, more or less, the contract price agreed on between the parties for feeding 200 head of cattle during the winter of 1894 and 1895. At the commencement of the action the plaintiff below caused a writ of attachment to issue, under which the sheriff of Butler county levied on property belonging to the defendant, Thompson. Several summonses were issued, but none of them was served. The defendant filed a motion in the trial court to dismiss the action, as follows:

"Now comes the defendant, R. S. Thompson, for the purpose of this motion only and for no other, and moves the court to dismiss this action for the reason that the court had no jurisdiction over the person of this defendant, and that this action is improperly brought in this county; that the defendant, R. S. Thompson, against whom alone this plaintiff seeks judgment and whose property plaintiff claims to have attached in this suit, is a resident of the county of Reno, state of Kansas, and has been for several years last past; that there has been no service had upon the said defendant in this county, and the court has no jurisdiction over his person or the subject-matter of the action."

Defendant's counsel appeared for the purposes of the motion only. The journal entry shows the following ruling by the court:

"The court finds that by the filing herein, on the 4th day of March, 1895, of the motion of the said defendant he, the said defendant, R. S. Thompson, thereby duly submitted himself to the jurisdiction of this court and thereby duly entered appearance therein, and that this court thereby acquired jurisdiction of the person of said defendant, R. S. Thompson."

We think the court below erred in overruling the motion to dismiss. The application was based solely on jurisdictional grounds, and the appearance of the moving party was special. (Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385; Life Association v. Lemke, 40 id. 142, 19 P. 337.)

After excepting to the action of the court in overruling his motion to dismiss, the defendant Thompson thereafter filed an answer and cross-petition in the cause, wherein he not only denied all liability to the plaintiff under the contract he had made for the keeping of the cattle, but set up a cause of action for damage to the same by reason of the failure of plaintiff Greer to feed and care properly for the animals, and prayed for an affirmative judgment against the plaintiff below for the sum of $ 4650.

Counsel for plaintiff in error argue in their brief, and in our opinion their contention is based on sound reason and the weight of authority, that after a special appearance by a defendant for the purpose of objecting to the jurisdiction of the court, and the overruling of such objection, the defendant does not lose the benefit of his attack on the jurisdiction by thereafter answering or pleading to the merits. (Dickerson v. B. & M. R. Rld. Co., 43 Kan. 702, 23 P. 936; St. L. K. & S.W. Rly. Co. v. Morse, 50 Kan. 99, 31 P. 676; Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237; 2 Elliott, Gen. Prac. § 475.)

The defendant below, however, was not content to place himself in a position of merely resisting a recovery by the plaintiff of the amount for which he sued, but on the other hand sought to establish against the plaintiff below an affirmative judgment amounting to $ 3650 more than the plaintiff Greer claimed that Thompson owed him for feeding the cattle under the contract. As to this $ 3650, the defendant below went into...