Wells v. Patton

• Decision Date: 11 February 1893
• Citation: 33 P. 15,50 Kan. 732
• Parties: WILLIAM WELLS v. ROBERT PATTON
• Court: Kansas Supreme Court

33 P. 15

50 Kan. 732

WILLIAM WELLS v. ROBERT PATTON

Supreme Court of Kansas

February 11, 1893

Error from Brown District Court.

ACTION by Patton against Wells and another. Plaintiff had judgment against defendant, who comes here. The opinion states the facts.

Judgment affirmed.

W. D Webb, and Grant W. Harrington, for plaintiff in error:

Where defendant in a civil action has been induced by plaintiff's fraudulent representations to come within the jurisdiction of the court, the summons then served upon him will be set aside, and it seems that in such a case the action should be dismissed, even after defendant has made a voluntary general appearance therein. Townsend v. Smith, 3 N.W. 439. In this case, the defendant, Wells, was not inveigled into the jurisdiction of the court by "artifice and falsehood alone," but by the fraudulent and unlawful use and abuse of the process of the court.

See Chubbuck v. Cleveland, 35 N.W. 362; Brenner v. Egly, 23 Kan 123; Jacobson v. Hosmer, 42 N.W. 1110; Andrews v. Lembeck, 18 N.E. 484; Van Horn v. Manufacturing Co., 37 Kan. 523; Rullman v. Hulse, 33 id. 679.

Jas Falloon, for defendant in error:

We think that the plaintiff in error made a voluntary appearance in this cause, and thereby submitted to the jurisdiction of the court, and, without any objections, entered into a trial on the merits, and, now that a decision is rendered adverse to him, he cannot be heard to say that the court had no jurisdiction. Packing Co. v. Casing Co., 34 Kan. 345; Burdette v. Corgan, 26 id. 104; Greenwell v. Greenwell, 26 id. 530; Bury v. Conklin, 23 id. 460; Meixell v. Kirkpatrick, 29 id. 679; Life Association v. Lemke, 40 id. 142; Forest Co. v. Chambers, 23 A. 1024; Anderson v. Burchett, 48 Kan. 781; Buckland v. Strickler, 49 N.W. 371; Dean v. Garlack, 34 Ill.App. 233; Leake v. Gallowley, 52 N.W. 824; Sweeney v. Shultes, 6 P. (Nev.) 44; Fire Ins. Co. v. Deck, 43 N.W. 500.

HORTON, C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action in the court below brought by Robert Patton against William Wells and Robert Morrison to recover $ 3,300 for an alleged conspiracy by which Patton was cheated and defrauded. On the 12th day of February, 1889, the petition was filed in the district court of Brown county. On the same day, a summons was issued and served on Morrison, in Brown county; the defendant Wells not being found. On the 20th day of February, 1889, another summons was issued out of the Brown county court, and served on Wells in Norton county, this state, on the 23d day of February. On the 2d day of March, 1889, another summons was issued out of the Brown county court, and served on Wells in that county, and these were the summonses issued in the action. There was an amended petition filed on the 26th day of March, 1889. Wells filed his answer, which was the only appearance made by him up to that time. In this answer he set up as a first defense that he was wrongfully and illegally brought into court; that the court had no jurisdiction of the action or his person, because he was a resident of Norton county, and was not a resident of Brown county, and had not been in the latter county for more than a month next preceding the commencement of the action, and that he did not come into Brown county for about two weeks after the action was commenced, and then only for the purpose of consulting with his attorneys about the action; and while in consultation with them he was served with process in Brown county. He set up that Morrison had no interest in the transactions referred to in the petition; that he was made a party to the action for the purpose of giving the district court of Brown county color of jurisdiction, and that the service of the summons in Norton county was for the purpose of inveigling him into the jurisdiction of the Brown county district court. His second defense was a denial of the allegations of the petition and an answer upon the merits. Morrison filed a general denial. The case came on for trial May 9, 1889, and the jury found a verdict for the plaintiff of $ 1,475, against Wells, but found a verdict for Morrison, the resident defendant.

In the special questions answered by the jury, they found that Morrison made no false or fraudulent representations to the plaintiff in regard to the value of the land taken by Patton, or of the Bowling notes, or of the land mortgaged to secure them; that at the time Wells was served with process in Brown county he was in consultation with W. D. Webb, his attorney, in regard to this action; that at the time he was served with summons, both in Norton and Brown counties, he resided in Norton county, in this state; that when Wells was served with summons in Brown county he had come from Norton county to Brown to prepare to defend this action, in pursuance of the summons served on him in Norton county, and that he came for no other purpose. On the 15th day of May, 1889, after the trial, Wells filed his motion to dismiss the case as to him --

"On the ground that, as a verdict has been rendered against Patton and in favor of Morrison, the court had no jurisdiction to render judgment against him, the service of summons being illegal and void, because it was illegally obtained, the service being first made on Morrison, in Brown county, and then on him, Wells, in Norton county, this state, and upon such service he came into Brown county to prepare his defense, and for no other purpose; and while engaged in the preparation of his defense, and while in consultation with his attorney, he was wrongfully and illegally served with process a second time in this case."

On the same day Wells filed his motion for judgment on the pleadings, evidence, and special findings of fact, for substantially the same reasons. These motions came on to be heard on the 28th day of May, 1889, and were overruled, Wells excepting.

We may assume for the purposes of this case that the service of summons in Brown county upon Wells was fraudulent and an abuse of judicial process. (Van Horn Bros. v. Great Western Mfg. Co., 37 Kan. 523; Townsend v. Smith, 3 N.W. 439; Chubbuck v. Cleveland, 35 N.W. 362; Jacobson v. Hosmer, 42 N.W. 1110; Andrews v. Lembeck, 18 N.E. [Ohio] 484.) In the latter case it was said:

"That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which requires their presence, without incurring the liability of being picked up and held to answer to some adverse judicial proceedings against them, is so far a rule of public policy that it has received almost universal recognition where the common law is known and administered."

The serious question in this case is, whether Wells, having answered to the merits, can be heard to say that the trial court had no jurisdiction of his person. Undoubtedly Patton had the right to a jury trial to settle the facts pleaded in the first defense set up in his answer. (Drea v. Carrington, 32 Ohio St. 595.) Under the circumstances of the case, this was the only way that a decision could be had upon the question whether the court in Brown county had jurisdiction over Wells. If Wells had stopped with his plea to the jurisdiction of the court, upon the findings of the jury no judgment could have been rendered against him.

"Before a summons can be rightfully issued from one county to another, the person served with the summons in the county in which the action is brought must have a real and substantial interest in the subject of the action, adverse to the plaintiff, and against whom some substantial relief may be obtained; and the action must be rightfully brought in the county in which it is brought, and as against the person served with summons in such county." (Brenner v. Egly, 23 Kan. 123; Linney v. Thompson, 44 id. 765; Rullman v. Hulse, 32 id. 598; 33 id. 670.)

Perhaps a defense to the merits may be united with a plea to the jurisdiction, but if this is done, the trial court ought to settle the question of jurisdiction before proceeding to try the other issues in the case. If Wells had asked that to be done in this case, then we think we might say that ...