46 Kan. 397 | Kan. | 1891
Opinion by
On the 21st day of May, 1886, William M. Duncan sued E. J. Stewart before A. R. Blackburn, a justice of the peace of Harper county, to recover the sum of $58 for services rendered. The justice of the peace issued a summons, which was regular upon its .face, and delivered it to C. M. Bodley, a constable. The summons was returned with the indorsement that service had been made by a copy left at the residence of the defendant. On the return-day the defendant made no appearance, and judgment was rendered in favor of the plaintiff for the amount claimed. On the following day an execution was issued on said judgment and delivered to Bodley, as constable, which was levied upon the property in controversy in this action. On the 12th of June the plaintiff in error brought an action in replevin against Bodley and Stewart to recover the property taken on execution. The defendants in this replevin suit gave a redelivery bond, retained possession of the property, and it was sold under the execution. This replevin action was never tried, but was continued from term to term, until June, 1887, when it was dismissed by the plaintiff without prejudice. This action was commenced in the district court of Harper county on the 19th day of July, 1887, to recover the value of the property sold upon execution by Bodley, as constable.
The defendant answered, and set up three defenses: First, a general denial; second, justification under the execution, and, third, the replevin action. The plaintiff demurred to the third ground, which was sustained by the court. The plaintiff then filed a reply to the second defense, denying the judgment, and alleged that Bodley did not serve a copy of the summons upon the plaintiff, but made a false return;
The assignment of error is, that the court should not have overruled the plaintiff’s'demurrer to the evidence of the defendant, and this raises the question as to whether or not the judgment rendered in the case of Duncan v. Stewart, before A. R. Blackburn, justice of the peace, was void. This is the main question in the case. If the judgment was rendered without service, it was void. To determine the question of service, we must consider what was left at the usual place of residence of the defendant. The summons issued by the justice of the peace was regular. The copy served was signed by the constable instead of the justice of the peace. It was addressed to Bodley, as constable, and contained the indorsement that if the defendant failed to appear, judgment would be taken for the sum of $58, with interest at the rate of 7 per cent, per annum from the 21st day of May, 1886, and costs of suit, and signed by A. R. Blackburn, justice of the peace. It could be seen at a glance that Bodley could not have been the justice of the peace and constable too; that his signature to the copy must have been a clerical error. The defendant served lived in the same township where the officers resided, and would be presumed to know who they were; and the fact that the name of the justice of the peace did appear in one place upon the copy, and that the process was addressed to Bodley, was sufficient to inform him that he had been sued. There is no question but that the service would have been set aside if a motion had been made for that purpose; but we are not prepared to say that the judgment was absolutely void, but might have been set aside in a direct proceeding. We conclude, therefore, that the service made upon E. J. Stewart,
Holding, as we do, that the judgment rendered in favor of Duncan and against Stewart was not void, but only voidable, there was no error in the trial of this action in the court below, and we therefore recommend an affirmance of the judgment.
By the Court: It is so ordered.
