6 Kan. App. 155 | Kan. Ct. App. | 1897
The defendant in error filed a petition in the Circuit Court of Shawnee County, which alleges that the plaintiff in error executed and delivered to him a promissory note of which the following is a copy :
“ $700. Fort Scott, Kan., January 33, 1892.
“ Ninety days after date, for value received, I promise to pay to the order of E. F. Ware, seven hundred dollars, at the First National Bank of Fort Scott, Kansas, with interest at ten per cent, per annum after maturity until paid. Appraisement waived. To secure the payment of this note, I hereby stipulate that, if suit be brought upon it in any court of record in the city of Topeka, Kansas, I hereby authorize, irrevocably, any attorney of such court to appear for me therein at any time hereafter, within the year 1892, and enter an appearance therein for me and file a written waiver of the issuance and service of a summons in such suit.”
The plaintiff in error was, at the time the petition was filed, a non-resident of the State of Kansas. The petition further alleges that he refused to come into the State so that the court could acquire jurisdiction over him, and refused to enter any appearance in the case or to appoint any attorney within the State for that purpose, although he had been requested so to do. The petition requests that J. B. Larimer, attorney at law, enter an appearance for the defendant in error and waive the issuance and service of summons. J. B. Larimer did file a paper signed by him, purporting to enter an appearance upon the behalf of the defendant, but expressly stating that he had not any authority from the defendant so to do unless it was given by the
The only question in the case is as to the validity of the stipulation in the note- authorizing any attorney whom the payee of the note may designate, to appear for the maker and confer upon the court jurisdiction without the maker’s knowledge ; especially where it appears from the record’ that he refused to appoint any one, or to authorize any one to appear for him.
The mode of acquiring jurisdiction by a court of record in this State is governed by statute. Aside from the actual service of summons upon a party, there are no provisions for the court’s acquiring jurisdiction except those provided in section 67 of the Code, and in sections 402, 403, 404, 405, 407 arid 408 of the Code, in relation to confession of judgments. The jurisdiction of courts of record in the class of causes to which this belongs, is expressly confined to courts of the county where the defendant resides or wherein he may be summoned. The provision of section 67
This contract does not purport to confer an authority upon any specific attorney. It is not acknowledged or proven as required by the provisions of section 403 of the Code. It creates no special agency in any one for the purpose designated, but leaves it open for the plaintiff filing his petition to designate some one as the special agent of the defendant simply to enter an appearance and give the court jurisdiction. It in effect results in giving the defendant no day in court. It would open the door to fraud and oppression and make the courts involuntary parties thereto. In violation of the terms of section 4 of the Code, it requires the presumption in the first instance that tile contract was executed because it is undenied, when in fact thé defendant has no knowledge of the pendency of the suit and no opportunity to deny. The selection of counsel would be in the interest of the plaintiff, hence no denial would be reasonably expected. The court
Our conclusion is that the court rendered the judgment without jurisdiction of the defendant; and that the judgment is a void judgment, and, under the terms of the Code, can be set aside upon motion, as the defendant attempts to do in this case. The court erred in denying the motion. The order is reversed, with direction to the court below to sustain the motion and vacate the judgment.