Woodring v. Hall

• Decision Date: 09 March 1968
• Docket Number: No. 44952,44952
• Citation: 438 P.2d 135,200 Kan. 597
• Parties: Flora M. WOODRING, Appellant, v. Charles William HALL, Appellee.
• Court: Kansas Supreme Court

Page 135

438 P.2d 135

200 Kan. 597

Flora M. WOODRING, Appellant, v. Charles William HALL, Appellee.

No. 44952.

Supreme Court of Kansas.

March 9, 1968.

Rehearing Denied April 10, 1968.

Syllabus by the Court

1. K.S.A. 60-308(b)(1) was adopted from the state of Illinois and carried with it the construction placed upon it by the courts of that state. Also this court adopts the construction of the Illinois Supreme Court sustaining the constitutional validity of the statute. (Following Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128, this day decided.)

2. K.S.A. 60-308(b) authorizing the entry of judgments in personam on personal service of summons outside the state in enumerated classes of cases, is not invalid in applying to claims for relief which arose before the effective date of the enactment of the statute, since the statute does 'not extend either to destruction of an existing cause of action or to the creation of a new liability for past events' but merely affects the method of procedure by establishing a new method of obtaining jurisdiction of the person of the defendant in order to secure existing rights.

3. There is no vested right in any particular remedy or method of procedure, and while statutes generally will not be construed to give them a retroactive operation unless it clearly appears that such was the legislative intent, when a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure without regard to whether they accrued before or after the change and without regard to whether the action has been commenced or not, unless there is a saving clause as to existing litigation. (Following Jones v. Garrett, 192 Kan. 109, 386 P.2d 194.)

4. The provisions of K.S.A. 60-308(b) declaring that a nonresident submits his person to the jurisdiction of the courts of this state if he does any of the acts enumerated therein, reflect a legislative intention to exert judicial jurisdiction over nonresident defendants to the extent permitted by the due process clause of the Fourteenth Amendment.

5. In order to subject a defendant to a judgment in personam if he be not present within the territory of the forum state, he must have the minimum contacts enumerated in the statute, and whether due process is satisfied depends upon the quality and nature of the activities of the defendant, which must be determined on a case by case basis. Essentially the same factors which enter into the determination that K.S.A. 60-308(b) authorizes the exercise of judicial jurisdiction are involved in deciding whether the exercise of jurisdiction is constitutionally valid.

6. In determining whether a defendant's activities have substantial connection with Kansas as to confer jurisdiction of the courts of this state over the person of a nonresident defendant under K.S.A. 60-308(b), relevant inquiry is whether the defendant engaged in some act or conduct by which he may be said to have invoked the benefits and protection of the law of Kansas.

7. While it cannot be stated with exactitude what constitutes 'the transaction of any business within this state' as used in K.S.A. 60-308(b)(1), the Legislature did not categorize 'business' into component parts such as 'commercial business' or 'personal business,' but intended the phrase 'transaction of any business' to be used in its broadest legal sense.

8. In a broad sense, 'business' is transacted within this state when an individual is within or enters this state in person or by agent and, through dealing with another within this state, effectuates or attempts to effectuate a purpose to improve his economic conditions, and satisfy his desires.

9. Collateral attacks upon judicial proceedings are never favored, and where such attacks are made, unless it is clearly and conclusively made to appear that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void, but will be held to be valid.

10. K.S.A. 60-308(b)(1) specifically enumerates one of the acts for which extraterritorial service of summons may be had as 'the transaction of any business within this state.' It is held that the loaning of money by the plaintiff in Kansas to the defendant while a resident of this state for living expenses and the expenses of his education at the University of Kansas School of Medicine, which indebtedness the defendant acknowledged in writing in the journal entry in an action for divorce he brought against his wife in a Kansas court, were sufficient minimum contacts with the state of Kansas to give the district court jurisdiction to render a judgment in personam against him following personal service of summons upon him outside the state, and were such that the maintenance of the suit did not offend traditional notions of fair play and substantial justice.

Calvin McMillan, Wichita, argued the cause, and Robert W. Kaplan, Wichita, was with him on the brief, for appellant.

Thomas A. Wood, Wichita, argued the cause, and Paul V. Smith, Douglas E. Shay, William C. Farmer, Leo R. Wetta, James R. Schaefer and Larry L. Witherspoon, Wichita, were with him on the brief, for appellee.

FATZER, Justice.

At issue is the construction and application of K.S.A. 60-308(b) of the Code of Civil Procedure effective January 1, 1964, as it authorizes the entry of judgments in personam on personal service of summons outside the state of Kansas in enumerated cases. The parties state the principal questions for decision are (1) whether the loaning of money by a relative for living and educational expenses constitutes 'the transaction of any business within this state' as contemplated by 60-308(b)(1), and (2) whether the statute may be constitutionally applied retroactively.

The parties will be referred to as they appeared in the court below.

On March 29, 1965, the plaintiff commenced this action in the district court and her claim for relief stated the defendant was indebted to her in the sum of $3,766.04 'for money lent by plaintiff to defendant from December 1, 1952, through April 3, 1962, which indebtedness was acknowledged in writing by said defendant in the sum of $3,100.00 on the 17th day of April, 1962.' The written acknowledgement of the indebtedness was alleged to be contained in journal entry of divorce dated April 17, 1962, wherein the defendant in this action, Charles William Hall, was the plaintiff and Betty Arlene Hall was the defendant. The court's findings in the journal entry of divorce were that both the plaintiff and defendant were residents in good faith of Wyandotte County, Kansas, for more than one yaer prior to the filing of the action for divorce, and that the decree of divorce was granted to the defendant, Betty Arlene Hall. A copy of the journal entry of divorce was attached to the plaintiff's petition, marked Exhibit 'A' and made a part thereof.

Personal service of summons was had upon the defendant in Harris County, Houston, Texas, on April 22, 1965, pursuant to 60-308(b)(1), and due return thereof was made to the district court.

On June 21, 1965, no answer or other responsive pleading having been filed by the defendant, the plaintiff proceeded to take a default judgment against the defendant in the sum of $3,766.04, plus interest and costs, and gave him due notice thereof.

On June 17, 1966, approximately twelve months later, the defendant filed a motion to set aside the plaintiff's default judgment, to quash the service of summons alleged to have been made on him in the state of Texas on April 22, 1965, and to dismiss the action, for the reason that the district court lacked jurisdiction of the person of the defendant and that the judgment was void.

The motion was heard on the affidavit of the defendant and the written stipulation of the parties. The affidavit stated in substance that the defendant had been a bona fide resident of Harris County Texas, since July, 1962, and he had not been a resident or domiciled in the state of Kansas since that time. The stipulation recited the defendant was a resident of the state of Kansas from December 1, 1952, through April 3, 1962, when the plaintiff loaned money to the defendant; that during that period, the plaintiff was the defendant's mother-in-law and that this action was brought to recover money loaned by her to the defendant in the state of Kansas for living expenses and expenses of his education at the Kansas University Medical Center.

On November 17, 1966, the district court, after hearing argument of counsel and considering their respective briefs, concluded the defendant's motion, 'is now hereby sustained for lack of jurisdiction, it being found that the transaction concerned does not constitute the 'transaction of any business' within this State and within the meaning of K.S.A. 60-308(b).'

In harmony with that conclusion, the district court set aside the default judgment entered on June 21, 1965, against the defendant, quashed the service of summons alleged to have been made on him in the state of Texas on April 22, 1965, and dismissed the action. This appeal followed.

As indicated, this controversy focuses upon 60-308(b)(1). Except for a few minor changes in language, subsection (b) subparagraphs (1)(2)(3) and (4) thereof were lifted bodily from the Illinois Civil Practice Act of 1955 (Smith-Hurd, Ill. Annot.Statutes, Ch. 110, § 17), by the committee which drafted our Code of Civil Procedure. The provision was wholly new and was based on 'the test of due process laid down in International Shoe Co. v. State of Washington etc., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057.' (Smith-Hurd, op. cit., supra, Joint Committee Comments, p. 164.) Section 60-308 reads in part:

'(b) * * * Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said...