Threadgill v. Beard

• Decision Date: 24 February 1979
• Docket Number: No. 49014,49014
• Citation: 590 P.2d 1021,225 Kan. 296
• Parties: Carolyn J. THREADGILL, Appellee, v. Elizabeth BEARD, Appellant.
• Court: Kansas Supreme Court

Page 1021

590 P.2d 1021

225 Kan. 296

Carolyn J. THREADGILL, Appellee, v. Elizabeth BEARD, Appellant.

No. 49014.

Supreme Court of Kansas.

Feb. 24, 1979.

Syllabus by the Court

1. Leaving a copy of a document at a place other than the defendant's actual residence is not valid service under a statute requiring that the document be left at the defendant's "usual place of residence."

2. Where a statute specifies a method of notifying a defendant that he has been sued in court, the method of transmitting the notice to defendant must be one that is reasonably calculated to give the defendant actual notice of the pending action and an opportunity to be heard in defense.

3. The legislature is fully justified in prescribing different procedure for limited actions, including the difference in the requirements for service of process.

4. K.S.A. 61-1805 is constitutional; it does not violate either the due process or equal protection clauses of the United States or the Kansas Constitutions.

5. K.S.A. 61-2204 is civil and remedial. Its purpose is to provide a simple and effective method by which a person who has recovered judgment in a limited action may discover the assets of a recalcitrant judgment debtor and thus find property or funds which may be levied against in order to satisfy the judgment.

6. Whether a particular act or omission is contemptuous depends not only upon the nature of the act itself, but upon intent, good faith, and the surrounding circumstances.

7. In an appeal from a judgment holding the appellant in contempt, it is Held that no contemptuous conduct was established, and the appellant should be discharged.

James E. Salyer of Oyler & Salyer, Lawrence, argued the cause and was on the brief, for appellant.

Michael J. Malone, County Atty., argued the cause and was on brief, as intervenor.

No appearance by the appellee.

MILLER, Justice:

This is an appeal by the defendant, Elizabeth Beard, from judgment entered in Douglas District Court, sitting as the Small Claims Court of Douglas County, finding the defendant in indirect contempt and sentencing her to serve two days in jail.

In November, 1976, Carolyn J. Threadgill, a former tenant of the defendant, filed a petition in the small claims court seeking recovery of her initial tenant's deposit of $100 plus damages of $150 under K.S.A.1975 Supp. 58-2550(C ). Summons was served on defendant by posting it (attaching it with a thumbtack) on the door of a house at 116 Minnesota, Lawrence, Kansas. Defendant answered and counterclaimed for $180.80. Trial was held December 14, 1976; both parties appeared in person. The court entered judgment for plaintiff for $61.40 plus costs of $5. Aids in execution were served by posting on January 20 and January 31, 1977, requiring defendant to appear on January 27 and February 7, respectively. Defendant did not appear. On February 7, plaintiff signed and filed an accusation in contempt, reciting defendant's failure to appear pursuant to the Aid in Execution served on January 31, and stating that the judgment remains unsatisfied. A summons in indirect contempt was issued but the process server was "unable to locate defendant in time for court."

Plaintiff filed a second accusation in contempt, apparently on February 28, reciting defendant's failure to appear pursuant to the aid in execution issued on January 31, and again stating that the judgment remains unsatisfied. Summons in indirect contempt undated but apparently issued February 28, was served Personally on the defendant on March 9. It commanded the defendant to appear in person on March 10 at 2:30 p. m. to be confronted with an accusation in indirect contempt, and it recited that the judgment of $61.40 plus costs of $5 remains unpaid and unsatisfied. The summons was returned and filed on March 11.

On March 10, defendant having failed to appear, the judge issued a bench warrant for her arrest. On March 11, the court received a check in full payment of the judgment and costs, which defendant had mailed on March 9 or 10. On March 14, the clerk of the court issued a receipt to defendant showing that the judgment was satisfied and the costs were paid. On the same date the plaintiff filed a satisfaction of judgment, and so far as the record indicates, plaintiff has not appeared further in these proceedings.

The sheriff arrested defendant on the bench warrant and brought her before the issuing judge on March 15. The judge fixed bond for defendant's further appearance at $1500, cash or surety, and apparently she was committed to the custody of the sheriff until bond could be posted later that day.

The judge then signed and filed two documents, "AFFIDAVIT SHOWING DEFENDANT TO BE IN INDIRECT CONTEMPT," and "ACCUSATION AND MOTION TO FIND DEFENDANT IN INDIRECT CONTEMPT." The affidavit was sworn to by the judge before a notary public on February 16, 1977, and both documents were stamped "FILED" on that date.

The affidavit recites "that on March 9, 1977, the above-named defendant was personally served with a summons . . . for her appearance . . . on March 10, 1977 at 2:30 P.M. That said defendant failed to make her appearance as ordered by this Court. That because of the foregoing, the defendant is in indirect contempt of this Court." The accusation and motion commences "COMES NOW, the State of Kansas by and through the Associate District Court Judge, John Mike Elwell, and moves to find that the defendant above-named is in indirect contempt of this Court for her failure to comply with the . . . orders of this Court" (reciting the history of events).

Trial was held on March 23. Plaintiff did not appear; defendant appeared in person and by counsel. The judge called the deputy sheriff who had served all process in the case as his only witness. The judge conducted the direct examination of that witness, and he cross-examined defendant.

The deputy sheriff testified that he had attempted to serve papers on Mrs. Beard 75 to 100 times; that she lived out in the country on Route 1; that he has seen her cars at 116 Minnesota, but no one has ever answered the door there; that he served the papers at 116 Minnesota by posting them on the door, meaning that he attached the document to the door with a thumbtack; that unless he catches Mrs. Beard out on the road in one of her vehicles, he usually has no direct contact with her; and that at the time he served defendant with the summons in indirect contempt on March 9, she said she was going to get it taken care of, and the deputy told her to "pay it directly to the Court, then there won't be any argument from the (other party) whether it was paid or not paid. It should be paid directly to the Court."

Mrs. Beard testified that her residence was on Route 1; that 116 Minnesota was a rental property, but she retained possession of the garage as a storage and work room, and therefore she went to the property at various times. She did not receive the aids in execution posted at 116 Minnesota on January 20 and January 31. When the deputy served her personally on March 9, he told her to pay it to the court and not to the plaintiff, so she mailed her check to the court, either the night of the ninth or the following day. She did not read the summons which was served upon her on March 9, but thought they wanted her to pay the judgment, and she paid it. On cross-examination the judge indicated that contempt citations had been issued against the defendant in two other cases; defendant responded that she just sent the money in to the court like she did in this case. The judge stated that the dates of payment of the other judgments were not reflected in court records, but in both cases satisfaction was filed after the date for appearance.

In ruling, the judge said:

"(I)f there was an isolated incidence, we had no prior contacts, I think it would be considered in effect that the defendant had satisfied the judgment and there wasn't any point in pursuing the matter. Unfortunately, with the number of cases filed, all from the same thing, not returning people's deposits, the Deputy having seems like a great deal of difficulty finding the defendant to serve papers at least I think that's the way his testimony can be interpreted, I would have to reach the conclusion that the defendant in this case does about everything she can to avoid process, and that the order in effect so far as the contempt citation was personally served, she can understand it in order to make a personal appearance. This she did not do. She stated her reasons for why. Nevertheless, Court's going to find that she's in indirect contempt of Court by reason of failure to make that appearance."

The court then sentenced the defendant to serve two days in the county jail. She appeals.

Mrs. Beard first contends that K.S.A. 61-1805, which governs the service of process under the Code of Civil Procedure for Limited Actions, is unconstitutional in that it denies due process and equal protection under both state and federal constitutions to defendants in such actions. K.S.A. 61-1805 provides in part that:

"Service upon an individual . . . shall be made by delivering a copy of the summons and of the petition to such individual personally Or by leaving copies thereof at such individual's usual place of residence . . . ." (Emphasis supplied.)

K.S.A. 60-304 governs the service of all summons issued out of the district courts of this state excepting those issued in limited actions. K.S.A. 60-304 provides that service shall be made:

"Upon an individual . . . by delivering a copy of the summons and of the petition to the individual personally or by leaving copies thereof at such individual's dwelling house or usual place of abode With some person of suitable age and discretion then residing therein . . . ." (Emphasis supplied.)

The latter statute requires that in case of "residence" service, the summons must be left with some resident who, presumably, would alert the person upon...