108 Kan. 205 | Kan. | 1921
The opinion of the court was delivered by
The plaintiff sued the defendant, a surgeon, for violation of his contract in the performance of a surgical operation upon her, and also for malpractice. She further asked that he be enjoined from enforcing a judgment
So far as the recovery on the count for malpractice is concerned, it turns upon the application of the statute of limitations. The action was brought more than two years after the cause of action accrued, but less than three years after that time. In the first count of her first cause of action, she alleged in substance that the defendant agreed to perform an operation upon her in order to relieve her from an obstruction of the bowels and to give her the necessary treatment following the operation for $100, and it was also agreed that he would not remove her vermiform appendix, uterus and ovaries, or perform any other operation on them, but that when she submitted to the operation, in violation of his agreement he removed the appendix, stitched the uterus to the walls of the abdomen in a manner not in accordance with the custom and practice of good and prudent surgeons, causing her to suffer great injury and pain, for which she asked judgment in the sum of $5,468.44.
The second count of the same cause of action set out the facts substantially as stated in the first, except that no mention was made of an employment or of an agreement as to the manner or extent of the operation, but it was alleged that the defendant, in disregard of his obligation and duties as a surgeon to perform it in a manner becoming a good, reputable and ordinarily prudent surgeon, had removed her appendix, which was in a good healthy condition, and had stitched the uterus to the wall of the abdomen contrary to the custom and practice followed by good surgeons, and further, that the operation on the obstruction of the bowels, the ailment for which she underwent the operation, was not properly done and only afforded her partial relief. Following this, are the same allegations as to the pain, mental anguish and injury which resulted from the operation as performed, with prayer for judgment, as are stated in the first count.
The court overruled a demurrer to the first count evidently upon the theory that the cause of action alleged was one arising on contract to which the three-year limitation applied. Of this no complaint was made by either party.
A demurrer to the cause of action for injunction was rightly sustained. Plaintiff alleged that defendant sued her in the city court for his services and recovered a judgment against her for $75, and she asked that the enforcement of the judgment be enjoined. This remedy was asked on the ground that the summons issued was invalid because it was directed to the city marshal of Atchison, and also to the sheriff of the county. There is nothing substantial in this objection. It could be served by either officer and the direction to both does not affect the validity of the summons nor afford the plaintiff cause for complaint.
Another ground of attack on the judgment is that no legal service of the summons was made upon her. She admits that the officer made a return to the effect that he executed a summons by delivering to her a true copy of the same with all the endorsements thereon duly certified within Atchison county. To overcome the return of personal service plaintiff alleges that she was an absolute stranger to the officer and that her identity on the day of service was outside of his personal knowledge. A return of personal service cannot be so easily overthrown. In Orchard v. Peake, 69 Kan. 510, 77 Pac. 281, it was said:
“A return that personal service of a summons on a defendant has been made is not open to contradiction, or to be disproved by extrinsic evidence, after the rendition of judgment.” (Syl. ¶ 1.)
In case a false return is made by an officer, the remedy of a party injured is upon the official bond of the sheriff. The
The averments in the petition as to the insufficiency of the proof upon which the judgment was rendered do not affect the jurisdiction of the court nor afford ground for a collateral attack on the judgment.
It follows that the orders of the district court, sustaining the demurrers to the petition, must be affirmed.