14 Kan. 529 | Kan. | 1875
The opinion of the court was delivered by
In this case the service of the summons was made on the defendants below (plaintiffs in error) on the return-day thereof. Such a service is irregular and voidable, and a judgment founded thereon may be reversed, vacated or set aside at the instance of the judgment-debtor, in any proper proceeding therefor, provided no waiver of service has been had in the case by appearance or otherwise. (Dutton v. Hobson, 7 Kas., 196; Armstrong v. Grant, 7 Kas., 285.) In the present case there was an appearance by all the defendants below in about the same form. The appearance of G. M, Simcock is in the following form, to-wit:
“And now comes the defendant G. M. Simcock, by his attorneys Hughes & Bradley, and appearing for the purpose of this motion only moves this court to dismiss the above-entitled action, and to set aside the summons in said action so far as Simcock is concerned, for the reason that said summons in said action was served upon said Simcock on the return-day of said summons. Said summons was issued by the clerk of said court on the 19th of February 1874, and was made returnable on the 23d day of February 1874, and was served on said Simcock on said 23d of February.
“Hughes & Bradley, Attorneys
For G. M. Simcock for the purpose of this motion only.”
The appearance in this motion was a special appearance merely for the purpose of contesting the jurisdiction of the court — merely for the purpose of contesting the regularity of the service of the summons, and cannot be construed into a waiver of jurisdiction, or a waiver of service. The motion
We have taken no notice of the irregularity in issuing the summons, in making the return-day thereof only four days from the date thereof, instead of ten days, as neither counsel has called our attention to it. We have considered the summons as though it was regular in every respect, and the full time given'in which to return the same and in which to answer.
Judgment reversed, and cause remanded for further proceedings.