109 Kan. 275 | Kan. | 1921
The opinion of the court was delivered by
This is an appeal from a judgment rendered in favor of plaintiff, J. F. Gigoux, against Charles Griffith, upon a promissory note executed by Griffith to the Denver, Laramie & Northwestern Railroad, which had been transferred to plaintiff. The execution of the note was admitted but defendant alleged that it had been procured through
It was executed on September 4, 1911, payable six months after date, and the limitation period expired on March 4, 1917. Plaintiff’s petition was filed on February 26, 1917, and a summons issued thereon was immediately served. After the service and on March 27, 1917, defendant moved to quash the summons on the sole ground that there was no indorsement upon it of the amount for which judgment would be rendered in case the defendant failed to answer. 'Without waiting for the disposition of the motion, the plaintiff on March 31, 1917, caused 'an alias summons to be issued on which the proper indorsement was made. On September 1, 1917, when the motion came on for hearing, the defect in the first summons was confessed and the motion sustained, but the court held that the action had been duly commenced before the bar of the statute of limitations had fallen. The contention of the defendant is that the first summons was void and that the action was not in fact commenced until the alias summons was issued, and it is insisted that when the plaintiff confessed the motion, the ruling sustaining it was a binding finality as to him.
An action is deemed to be commenced at the date of the summons which was served on the defendant, and an attempt to commence an action is equivalent to a commencement, when the plaintiff faithfully, properly and diligently endeavors to procure a service and the attempt is followed by service within sixty days. (Civ. Code, § 19.) As to the defect in the first summons, the pertinent code provision is:
“Where the action is on contract ior the recovery of money, there shall be indorsed on the writ the amount to be furnished in the praecipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs.” (Civ. Code, § 60.)
The indorsement, as will be observed, is only required where the action is on contract for the recovery of money, and is only important in case of a default, and only affects the entry of judgment if the defendant fails to answer. If the defendant ignores the summons and fails to appear the judgment is limited to the amount indorsed on the summons, but if he
The next contention is that the evidence shows that the ■plaintiff was not a holder in due course of the note in suit. That claim is based on the alleged fraud of the officers of the Denver, Laramie & Northwestern Railroad Company, and subsidiary companies, in procuring and negotiating the note in suit. The facts in the case are substantially the same as those brought out in two former cases that were here on appeal, and as the applicable rules of law were there fully stated, there is no necessity to restate them in this appeal. (Gigoux v. Moore, 105 Kan. 361, 184 Pac. 637; Gigoux v, Henderson, 107 Kan. 325, 190 Pac. 1092.) It appears that plaintiff gave full value for the note of defendant and acquired it before its maturity. The alleged fraud of the railroad company and those allied with it which were organized to promote the building of a railroad, consisted of representations of the officers and agents of the companies as to the equipment and other property of the railroad company, the purpose for which the money derived from the subscription of defendant and other stockholders was to be used and as to the financial condition
We find nothing substantial in the objections to rulings on the admission of evidence nor in the exception to the overruling of the motion for a new trial.
The judgment is affirmed.