94 Kan. 708 | Kan. | 1915
The opinion of the court was delivered by
The plaintiff, by the guardian of his estate, filed his petition in the district court of Clark
Summons was issued to the defendants in Neosho county, where they resided, and made returnable July 7, notifying them that they must answer on or before July 26. The summons was personally served on June 28,
The sole question presented by the appeal is that of jurisdiction, the defendants contending that the court failed to acquire jurisdiction over them because the action was one in personam and not in rem; that the decree sought by the petition was operative on the person of the defendants and not on the real estate; and that the suit is governed by section 55 of the civil code and not by section 48. It is further contended that the summons was void and should have been quashed because made so returnable that only nineteen days were left for answer. The plaintiff insists that the defendants made a general appearance by virtue of having practically filed a prsecipe for a copy of the pleadings to be taxed as costs, and also by the motion filed by them, and argues that the suit was brought in the proper county.
. Section 107 of the civil code requires that the answer shall be filed within twenty days after the day on which the summons is returnable. (Neitzel v. Hunter, 19 Kan. 221.) Excluding the return day, which was July 7, and including the answer day, which was July 26, but nineteen days would be left, July 6, ten days from the date of the summons, being Sunday. Section 62 of the civil code provides that the summons shall be served within ten days from its date, except when
Section 48 of the civil code provides in substance that an action for the recovery of real property “or of any estate or interest therein, or for the determination in any form of any such right or interest, or to bar any defendant therefrom” must be brought in the county where the subject of the action is situated. Section 55 requires that every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned. If the action is governed by this section, then it was improperly brought in Clark county. If it is an action for the recovery of any estate or interest or the determination of any right or interest in any real estate or to bar any defendant therefrom, then it could only be brought in Clark county.
■ The question is not very clear, but an examination of the authorities may clarify the situation. In Neal v. Reynolds, 38 Kan. 432, 10 Pac. 785, it was held that one who seeks to rescind a contract for the exchange of real estate by an action brought in the county where the land is situated against persons residing in another county can not, after they have been summoned and appear in the action, amend by adding another cause of action for damages “and thus blend a local with a
“ ‘In a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not. within the jurisdiction of that court may be affected by the decree.’ (p. 160.)” (p. 593.)
In Martin v. Battey, 87 Kan. 582, 125 Pac. 88, holding that partition must be brought in the county where-the land is located and that such action could not include the interests of those who owned the land in a remote county but had no interest in the land where the suit was brought, it was said, referring to the quoted portion of section 48 of the civil code:
“So strict is this requirement that if a party seeks-to recover the possession of land and it consists of separate tracts in two or more counties separate actions must be brought in the counties where they are-situated. ... A party seeking to recover land can not compel another claiming interest in or title to-it to litigate the title in any county except where the land is situated. ... If the court is asked to act upon the person of the defendant the action may be-tried in any county where the defendant may be served and a lack of jurisdiction over him may be waived, but when the court is called upon to act upon real estate it
• “The action must be brought where the land lies if these two things concur: (1) If the subject of inquiry is a right or interest in the land; a'nd (2) if the judgment in the case will operate directly upon this right or interest. But the action, under this doctrine, is not within the rule, although its subject of inquiry is such right or interest, if the judgment operates merely in personam. The result is to distinguish actions Tor the determination’, of an interest in land from actions which involve the determination of such an interest, but will take effect in an injunction commanding defendant to do an act. which can be done by him within the jurisdiction of the court, or in a judgment for pecuniary damages for breach of a contract.” (40 Cyc. 59.)
In Hayes v. O’Brien et al., 149 Ill. 403, 37 N. E. 73, 23 L. R. A. 555, it was held that a suit to compel execution or cancellation of a deed to land may be within the jurisdiction of a court outside the county in, which "the land lies if it has jurisdiction of the person of the defendant. The land lay in Lake county and the suit was brought in Cook county, and it was held that when the relief sought does not require the court to deal directly with the land itself the proceeding does not affect the real estate within the meaning of the chancery act applicable, “and the court having the parties in interest all before it, may proceed, although the land to which the controversy relates may lie without the jurisdiction of the court.” (p. 410.) In State ex rel. Barrett v. District Court of Pine Co., 94 Minn. 370, 120 N. W. 869, 3 Ann. Cas. 725, an action to cancel a ■contract for the sale of land on the ground of fraud, and for the recovery of the purchase price, in which it did not appear that the vendors had the title to land, and in which no relief as to any real estate was involved, was held to be transitory and not local. The
From allegations of the petition it is clear that the relief sought consisted in preventing the defendants from transferring the land or the notes and mortgage, that the deeds, notes and mortgage executed to the defendants be canceled and set aside “and each of the parties restored to the property that they had before said purported exchange of properties,” and that the' plaintiff recover costs. Nothing was alleged as to possession, and no decree was asked quieting title. It was not asked that the defendants be required to reconvey or to perform any act whatever. The court was asked to decree the plaintiff into the status occupied by him before the alleged swindle, which in reality would be to hold the conveyance and the notes and security void, and to destroy their effect, which would and must be to leave the plaintiff’s title and land unaffected and unclouded, and to relieve him from all liability on the notes and mortgage, all of which seem to bring the case fairly within the rule of Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785.
By section 398 of the civil code a judgment for a conveyance would have had the effect of a conveyance, but here no conveyance was asked for.
“The real question in all these cases is as to the true náture of the action: Does it turn on the personal' obligation or on the title? Does it take immediate effect in personam or upon the interest in the land?' And the test here is found, not in any formal characteristic, but in the substantial nature of the action as. shown in the pleading, and the kind of judgment which' may be rendered.” (40 Cyc. 63.)
Each case must be decided according to its own-, characteristics. This one is painfully and perplexingly near the border line between local and transitory actions. A few changes in the pleadings might put it on the other side from the one now properly occupied.. But from a fair consideration of the two code provisions which seem to compel a holding that the action-is either local or transitory, and not both, and a practical view of the remedy sought, we are led to the conclusion in view of the authorities that the plaintiff, finding himself deprived of the ostensible title to and ownership of his land, and also apparently liable for a. debt seemingly secured by mortgage, with the instinctive desire to save his land and avoid such seeming-liability, applied to the court to exercise its jurisdiction — not in restoring him to possession, or in compelling the defendants to do or undo anything, but in decreeing away all the effects of the alleged swindle by-destroying all legal effect of the instruments which he-
The result is that the action, local in character, was rightfully brought in the county where the land is situated. This eliminates the necessity of considering the very interesting question of appearance presented by the record.
The decree is affirmed.