No. 331 | Kan. Ct. App. | Nov 21, 1899
The opinion of the court was delivered by
Consideration of this case is challenged by motion to dismiss, for the reason that the summons in error was not served as required by law. A summons in error was issued and served upon the defendant in error by reading it to him. No copy of the summons was left with him, and no waiver of summons or entry of general appearance has been made. Upon the hearing of the case, the plaintiff in error attempts to cure the defect by filing the following affidavit (omitting title) :
“Application and affidavit to supplement the sheriff’s return upon the summons in error.
“Comes now Mike Shrugrue, sheriff of Clark county, in the state of Kansas, and being first duly sworn, deposes and says that he is now, and has been for more than one year last past, the 'duly elected, qualified and acting sheriff of Clark county, Kansas;*771 and that he is the sheriff that served the summons in error in the above entitled-action upon the above-named defendant in error, George Theis, jr., and that he served said writ upon said Theis by reading said summons in error to said Theis, as shown by his original return on said writ; and the affiant further shows that at the time of the service aforesaid, after the affiant had read said writ to said Theis, that the said Theis then and there took said writ into his own hands and read it and returned it to the affiant without demanding a copy thereof; that subsequently, when this affiant’s attention was called to the fact that he had not given said Theis a copy of the writ, that affiant spoke to said Theis about it, and he, the said Theis, said he would fix it up, or fix it all right, or words to that effect; and further affiant saith not. So help me God.
Mike Shrugrue.
‘ ‘ Subscribed and sworn to before me at my office in Ashland, in Clark county, Kansas, this 27th day of September, a. d. 1899.
J. M. Grasham, Notary Public.
(My commission expires October 4,1902.)”
This is not sufficient to give this court jurisdiction. Section 13, chapter 83, General Statutes of 1897 (Gen. Stat. 1899, § 4837), requires a summons in error tobe served “ as in the commencement of an action.” The statute regarding the service of the summons in the commencement of the action (Gen. Stat. 1897, ch. 95, § 63; Gen. Stat. 1899, §4310) requires service to be made “by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence.” Section 13, supra, provides that “ service on the attorney of record in the original action shall be sufficient,” but it must be in the manner prescribed by section 63, supra. The objection is technical, but the law is explicit and we must follow it. More than sixty days in excess of one year having elapsed since the rendition of the judgment of the
The motion to dismiss is sustained.