42 P.2d 942 | Kan. | 1935
The opinion of the court was delivered by
This is an appeal from an order of the district court sustaining a demurrer to a petition filed by the defendant to vacate a judgment previously rendered in the action on the ground of unavoidable casualty or misfortune preventing defendant from defending. (R. S. 60-3007, 7th clause.)
The case was here before (Royse v. Grage, 138 Kan. 779, 28 P. 2d 732), which was an appeal from an order of the court overruling a motion to set aside the judgment on the ground that it was void. It then appeared the action was one for damages for malpractice; that the petition was filed December 6, 1932; that no answer was filed; that on March 23, 1933, the action was regularly called for trial, and the court, as authorized by R. S. 60-3109, heard the evidence and rendered judgment for plaintiff; that thereafter the defendant filed a motion to set aside the judgment on the ground it was void, for the reasons: (1) That the petition did not state facts sufficient to constitute a cause of action, and (2) that the evidence offered was insufficient to sustain the judgment. The trial court overruled this motion, and this court affirmed the ruling.
Thereafter, and on April 6, 1934, the defendant filed the petition involved in this appeal. The unavoidable casualty and misfortune
The principal legal question presented concerns the service of summons upon defendant at the beginning of the action. The petition to vacate the judgment alleges that it was served by leaving a copy thereof at the residence of defendant. In Atchison County v. Challiss, 65 Kan. 179, 69 Pac. 173, it was held:
. . Service by leaving a copy of the summons at the usual place of residence of a defendant is personal service, within the meaning and intent of the act, and valid.”
The “act” referred to in this quotation is our present R. S. 60-2507. The point determined was carefully considered in the opinion and the earlier cases cited. The opinion has been cited with approval in the following cases: Thisler v. Little, 86 Kan. 787, 790, 121 Pac. 1123; Sheehy v. Lemons, 99 Kan. 283, 284, 161 Pac. 662;
Appellant asks us to say th^t there is a difference in legal effect between the serving of a copy of summons upon a defendant personally and leaving it at his usual place of residence. To so hold would be to change the law which has existed in this state from the beginning. If such a change is to be made the legislature, not the court, should do this.
It is rather obvious that the other matters relied upon as constituting unavoidable casualty and misfortune are not substantial. On this point appellant cites and relies largely on Gordon v. Tennhardt, 134 Kan. 799, 8 P. 2d 328. That case originated in the city court, where both parties appeared and were represented by counsel, and was appealed to the district court, where it was tried in the absence of defendant and his counsel and without the notice to them required by our rule No. 31 (now No. 48), and the journal entry filed without being submitted to opposing counsel, as required by our rule No. 32 (now No. 49). There are other differences in the facts, but these are sufficient to distinguish it.
We find no error in the ruling of the trial court, and its judgment is affirmed.