101 Kan. 269 | Kan. | 1917
The opinion of the court was delivered by
March 19, 1914, plaintiff filed his petition in the district court of Haskell county against John A. Edwards and B. F. McCracken, alleging that they were the owners of 750 head of cattle, more or less, and that such cattle had broken into the plaintiff’s premises and destroyed certain trees and grass to his damage of $800. May 14, 1914, the defendants filed a joint motion that a third person be made a party defendant, and on the same day filed their joint answer denying
None of the evidence is brought up, and there is nothing except the result to show that the case as to the defendant Mc-Cracken was fictitious or collusive. Not until after all the preliminary questions of pleading had been settled and the plaintiff had introduced his evidence, did it appear that the case should be dismissed as against McCracken. Whether the plaintiff failed because his evidence was insufficient to establish a cause of action which he had, or because he had none in
It has been repeatedly declared that before the nonresident can be joined a' cause of action must exist against the local defendant. (Brenner v. Egly, 23 Kan. 123; Rullman v. Hulse, 32 Kan. 598, 5 Pac. 176,; Rullman v. Hulse, 33 Kan. 670, 7 Pac. 210; Linney v. Thompson, 44 Kan. 765, 25 Pac. 208; Hembrow v. Winsor, 94 Kan. 1, 145 Pac. 837.) In Brenner v. Egly, suit was brought against George Brenner, a surety, who, in the local county, was joined, with another against whom the action was dismissed. In the opinion it was said that in such cases both parties should be real and proper parties to the action and shown to be such on trial. That where the local defendant obtains a judgment in his favor or the action as to him is voluntarily dismissed, it would be presumed that he was not a real or proper party to the action, but that he was made a party for the purpose of suing the other in a county in which he did not reside and could not be summoned. In that case the nonresident set up suretyship in his answer and asked therein that his rights be protected, and that the case be dismissed against him if judgment should not be recovered against" the local defendant. Rullman v. Hulse was an action on three promissory notes. The nonresident moved to discharge "the attachment on thé ground that the court had no jurisdiction of the property and that the order of attachment was void. The motion was granted, and this was held proper for the reason that the cause was not rightly brought in the local county, and hence there was no authority to issue an order of attachment to another county. In the decision denying a rehearing (33 Kan. 670, 7 Pac. 210), it was held that as the rightfulness of the suit in the local county was not one of the issues presented by the pleadings, and could not be heard or tried upon the final trial upon the merits, the only manner in which it could be heard or tried would be upon a motion or a plea in the nature of a plea in abatement “filed and presented for hearing before answer to the merits, and before any general appearance in the case.” (p. 673.) Linney v. Thompson was an action on a note; the plaintiff’s ownership
When, therefore, the question of jurisdiction is properly and promptly raised and presented and it is made to appear that the local defendant was sued for the mere purpose of subjecting a nonresident defendant to litigation in the county where the suit was brought, the nonresident is entitled to a dismissal as to him.
Another familiar rule is that one who voluntarily subjects himself to the jurisdiction of the court, can not thereafter question such jurisdiction. In Meixell v. Kirkpatrick, 29 Kan. 679, an action to recover certain municipal bonds, the case was brought in Wilson county and the defendant resided in Labette county. The court said:
“Matthewson was sérved in that county, and Meixell in Labette county. Now, if Matthewson and Meixell were improperly joined as defendants, and that fact was made to appear, and the single question of jurisdiction over Meixell presented, it may be conceded that no jurisdiction over Meixell was obtained, and that the plea to the jurisdiction should have been sustained. But it is also true that the district court of Wilson county had ample jurisdiction over the subject-matter; and when Meixell appeared in that court, and by his pleadings raised questions other than jurisdictional, he thereby submitted himself and his rights to the jurisdiction of that court. When served with the summons, he appeared and filed a demurrer, which while it alleged a lack of jurisdiction, presented also a number of other defenses, and defenses on the merit. Such plea, by the prior adjudications of this court, was equivalent to an appearance. A party who denies the jurisdiction of the court over his person must first present this single question. He may not mingle with his plea to the jurisdiction other pleas which concede jurisdiction, and thereafter insist that there was error in overruling his plea to the jurisdiction.” (p. 682.)
“If he unites a defense to the merits in his answer with his plea to the jurisdiction, the trial court ought to settle the question of jurisdiction before proceeding to try the other issues in the case; but if the defendant objecting to the jurisdiction of the court, proceeds and tries the whole case upon its merits, and invokes a judgment of the court upon the merits, he submits himself and his rights to the jurisdiction of the court, and can be no longer heard to say that it had no jurisdiction.” (Syl. ¶ 4.)'
This was an action to recover for an alleged conspiracy. In the opinion it was said: -. • ■
“Of course, a trial court, in the exercise of a wise judicial discretion, will go very far to set aside any service obtained by gross' abuse of judicial process. But a defendant who asks this to be,done should not insist upon the court taking jurisdiction of his person for the purpose of protecting, him upon the merits of the case, and, after causing costs to be had in the case uj>on the merits, then seek to repudiate his submission to the jurisdiction of the court.” (p. 737.h
In Marshall v. Land Co., 75 Kan. 445, 89 Pac. 905, a fionresident who raised the question of jurisdiction by motion- to quash, making a special appearance in the action for that purpose, was held to be entitled to a dismissal of. the case as to him.
It has been held that a general appearance is entered by a defendant when he files a motion to make the plaintiff’s pétition more definite and certain, when he joins in a stipulation that plaintiff may have further time to amend his petition, or when he files general denial. (Bank v. Courter, 97 Kan. 178, syl. ¶ 3, 155 Pac. 27.)
“Where defendants who have been' summoned personally and [defendants who have, been summoned by publication service, join in a pleading or motion raising questions of law and questions of fact.involved in the general issue of a cause, a general appearance is thereby entered by all the defendants.” (Meador v. Manlove, 97 Kan. 706, syl. ¶2, 156 Pac. 731.)
For more than a year after entering his first general 'ap-* pearance in the action the defendant, Edwards, failed to raise any question as to jurisdiction of the court over him and under the foregoing, authorities he was in court for all purposes. At
It is conceded that the petition stated a cause of action on Its face and the mere fact that the action failed as to the local defendant was not sufficient under the circumstances and in the condition of the pleadings to entitle the nonresident defendant, who had in so many different ways appeared generally in the action, to a dismissal of the case as to him.
The judgment is affirmed.