122 Kan. 435 | Kan. | 1927
The opinion of the court was delivered by
On May 12, 1924, the Farmers Cooperative Grain, Live Stock and Mercantile Company brought this action against Hugo Hed to recover an alleged shortage in his account arising while he was its manager at Falun. A summons was issued returnable May 22. On that day it was personally served on the defendant. He made no appearance in the case and on February 4, 1926, judgment was rendered against him. In the following month, and during the same term of court, he appeared specially and moved to set aside the service and on March 29 the motion was overruled. He appeals from that ruling and from the judgment.
The statute requires a summons to be served “at any time before the return day” (R. S. 60-2507) and a service made on that day is irregular, but not void. In Dutton v. Hobson, 7 Kan. 196, on which the defendant largely relies, proceedings in error were taken from the judgment and a reversal was ordered because of that defect in the service, which had remained unchallenged until after the rendition of the judgment. There the petition was filed and summons issued March 26, 1870. The summons was returnable April 5, on which day it was served. Judgment was rendered on May 17 of the same year. A distinction may readily be drawn between that case
Simcock v. First Nat. Bank, 14 Kan. 529, which is also relied upon by the defendant, is even more readily distinguishable than the Dutton-Hobson case, for there the motion to quash the service was
Where a summons was defective because of the time allowed for answer being too short — a situation having some analogy to that here presented — and the trial court sustained a motion to quash it, this court said:
“In this case the defendant was advised personally of everything which the statute required the summons to contain. It is true the summons did not name the correct answer day as provided by another section of the code, but the other section would have given him that time to answer, notwithstanding the erroneous date in the summons. The only respect in which the defendant could possibly be prejudiced was in the time in which he might answer. He could have filed a motion asking for more time as readily as he could have filed a special appearance and motion to quash, and the court would have given it to him as a matter of course. The defect did not go to the jurisdiction of the court over the person of the defendant, nor render the summons void. At most it was only irregular and voidable. The trial court should have permitted an amendment to the summons upon plaintiff’s request or should upon its own volition have extended the time for the defendant to answer.” (Young v. Newbold, 114 Kan. 86, 88, 217 Pac. 269.)
The judgment is affirmed.