52 Kan. 613 | Kan. | 1894
F. R. Newberry and Charles P. Noell filed a petition in the district court of Ford county, alleging that the defendant, the Arkansas, Kansas & Colorado Railway Company, in constructing and operating its railway through and over their premises, threw down their fences and left the premises unfenced and without cattle guards, on account of which corn and fodder were destroyed, and they were required to incur extra expense in the herding of cattle and horses kept within the inelosure, and one cow was killed, whereby they sustained loss and damage to the amount of $1,230. A summons was issued, directed to the sheriff of Ford county, which was returned by the sheriff as having been served upon D. M. Frost, the vice president of the company, and, afterward, the return was so amended as to state that he was the chief officer of the company in that county, the nominal president of the company being a nonresident, and no person having been designated by the company, as the law requires, upon whom process could be served. Testimony was offered upon the motion, by which it appeared that the defendant company had leased its entire property to another railroad company, and that it had no clerk or agent in charge of any station or other property, and had made no designation of any person upon whom, to serve process. Other testimony was offered with respect to the duties of the vice president of the company and the place where the president resided. On May 16, 1889, the court sustained the motion, and set aside the service of summons. Another summons was duly issued, directed to the sheriff of Clark county, Kansas, commanding him to make service upon C. D. Perry, the president of the defendant company. The return, among other things, stated that a service had been made by leaving “a true copy of the within summons, with all the indorsements thereon, with the wife of the said C. D. Perry, president of the said defendant company, at his usual place of residence.” The service was made by the undersheriff of the county. A
The other rulings were based upon attempts to make serv