Wellsford v. Durst
| Decision Date | 01 December 1898 |
| Docket Number | 477. [*] |
| Court | Kansas Court of Appeals |
| Parties | C. M. WELLSFORD v. CHARLES DURST, JOHN DURST, AND F. M. LOGEMAN, Partners as Durst & Logeman, et al |
Opinion Filed December 15, 1898.
Error from Atchison district court; W. D. WEBB, judge. Modified.
Jackson & Jackson, for plaintiff in error.
S. K Woodworth, and W. L. Bailey, for defendants in error.
On June 8, 1893, the defendants in error, Durst & Logeman, began an action in the district court of Atchison county against Alfred P Beckman for the recovery of $ 100.80 debt and interest, and an attachment was on the same day duly issued and levied on a part of a town lot in Atchison, the title to which was at that time in litigation in the same court, in an action in which Susan Beckman was plaintiff and Alfred P. Beckman was defendant. In this last-mentioned action the property was afterward sold by proceedings in partition and the share of the proceeds thereof belonging to said Alfred P. Beckman was brought into court and held to await a final determination of the conflicting claims thereto. On June 10, 1893, a summons was issued in this case, addressed to the sheriff of Logan county, Oklahoma, and was served on Alfred P. Beckman on June 19, 1893, and returned to the court whence it issued on June 22, 1893. This service and summons were on December 16, 1893, vacated and set aside for the apparent reasons that it was directed to the sheriff of Logan county, Oklahoma, instead of to the defendant, as required by law, and was served by a copy instead of the original, and the defendant was allowed only fifty-nine instead of sixty days from the time of service in which to answer. Afterward said defendant was legally served by publication, the notice thereof being first published on January 1, 1894, and on May 15, 1894, judgment was duly rendered thereon for $ 146.35 with interest and costs in favor of said Durst & Logeman and against Alfred P. Beckman. On December 11, 1893, Alfred P. Beckman and wife deeded said lot to Simon Koffler, and on March 1, 1894, Simon Koffler mortgaged it to Byron R. Baker for $ 750. On August 20, 1894, Byron R. Baker assigned the Koffler mortgage to Lena Baker, and she, on December 10, 1894, assigned it to this plaintiff in error, C. M. Wellsford.
On these facts the court found as a conclusion of law that the Alfred P. Beckman interest in the lot had been assigned to C. M. Wellsford, subject to the attachment liens of Jackson & Jackson and of Durst & Logeman, and made its decree accordingly. To reverse this decree establishing the validity of the lien of Durst & Logeman, the case is brought to this court for review.
There is just one question in this case: Does a defective service of a defective summons, which is afterward set aside by the court, constitute a service of summons as contemplated by section 81, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, P 4164), so as to charge third persons with notice of the pendency of the action? It seems to us that the reasoning in the opinion in the case of Insurance Co. v. Stoffels, 48 Kan. 205, 29 P. 479 is exactly...
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