78 P. 406 | Kan. | 1904
The opinion of the court was delivered by
H. Parker and others, partners as the H. Parker Grain Company, brought an action against the Chicago, Rock Island & Pacific Railway Company, defendant in error, before L. G. Disney, a justice of the peace of Topeka township, Shawnee county, which township is situated outside of the city of Topeka. The action was brought to recover $220 as damages and a reasonable attorney’s fee for failure of the company to deliver a stated amount of wheat shipped by plaintiffs below over the road. The return of the constable recited that a certified copy of the summons was served on the railway company by delivering it to its chief clerk at Topeka, Kan. Judgment was rendered by default against the railway company by the justice of the peace, it having made no appearance on the return-day of the summons. Within ten days the company filed an appeal bond.
A motion was made in the district court by the railway company to dismiss the action, supported by an affidavit of its superintendent. There was no other
The transcript of the justice sent to the district court contains a copy of the bill of particulars, in which defendant below was alleged to be a corporation “organized and exisiting under and by virtue of the laws of the state of-There is nothing in the motion to dismiss, or in the affidavit, showing that the railway company was a foreign corporation. Counsel for plaintiff in error assert in their brief that it was admitted on the hearing that the Chicago, Rock Island & Pacific Railway Company was a foreign corporation. It does not appear so from the record. The affidavit filed to support the motion to dismiss shows that at the time the action was begun the railway company did no,t keep or maintain any depot, office, agency or place of business in Topeka township ; that it had its general offices, west of the Missouri river, in the city of Topeka; that it had a local superintendent of repairs, four freight agents, three agents to sell tickets, and a station-keeper, all of whom resided in the city of Topeka; that it operated its road into and through the city of Topeka, and carried on a general railroad business in said city, and maintained three depots therein for the transaction of business.
We must presume from the allegations of the bill of particulars and the showing in the affidavit used on the motion to dismiss that defendant in error was a Kansas corporation, created under the laws of this state. Section 1293, General Statutes of 1901, requires that every corporation created or existing under the laws of Kansas shall keep a general office within the state, and, in the case of a railway corporation, it
“The jurisdiction of justices of the peace in civil actions shall be coextensive with the county wherein they may have been elected, and wherein they shall reside; provided, that in any county in which a city court has been or shall be created, justices of the peace outside of the city wherein such court is located shall not have jurisdiction of cases in which any defendant resides in such city.”
A city court existed in Topeka when the action was .brought. The proviso in the above section devests a justice of the peace outside of a city of jurisdiction over the subject-matter involved in cases where any defendant resides in a city in which a city court has been established, and also over the person of a party defendant in such suit. He cannot act in such cases, nor render a valid judgment. If the justice had jurisdiction over the subject-matter of the action, the filing of an appeal bond by the railway company would have given him jurisdiction over the person of de
The district court had appellate jurisdiction only. If jurisdiction over the subject-matter of the action was lacking in the justice of the peace, it was not conferred on the district court by the appeal. ( Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. 631; Ball v. Biggam, 43 id. 327, 23 Pac. 565.)
The only question remaining is whether the railway company was to be regarded as a resident of the city of Topeka. If so, the action was rightfully dismissed. The evidence heard on the motion did not show that-the railway company had what might be called a residence elsewhere in the state of Kansas. In Robinson v. Railway Co., 67 Kan. 278, 281, 72 Pac. 854, it was decided that the residence of a railway corporation for the purpose of service under section 5228,. General Statutes of 1901, is that place where its habitation is fixed and permanent. In the case cited an action was brought against the Missouri Pacific Railway Company before this same justice of the peace, and service had on an agent of the company in Topeka. The principal office of the company was in Wyandotte county. The court said :
“The defendant in error [railway company] may have a residence in Kansas within the meaning of this section [§ 5228, supra] , but it can have but one ; and if it can have such residence it must be in the city where its general offices are located and its corporate business conducted. It is not contended in this case that such general office was' maintained in the city of Topeka.”
If the Rock Island company did not have a general office in Topeka, but did have one elsewhere in Shawnee county, or in any other county in the state, sery: ice obtained on it anywhere in Shawnee county in
The order of the district court dismissing the case is affirmed.
