64 P.2d 26 | Kan. | 1937
The opinion of-the court was delivered by
This appeal is from an order overruling the motion of two of the defendants to strike certain allegations from the second amended petition and from an order overruling their demurrer to the petition. A brief statement of the pleadings filed and rulings thereon will enable us better to understand the questions argued.
Personal service of summons was obtained upon the defendants in Wyandotte county. Holly Jarboe and Harriet Jarboe were nonresidents of the state and service by publication was had as to them. Thereafter, and on September 23, they filed the following motion:
“Come now the defendants, Holly Jarboe and Harriet Jarboe, for the purposes of this motion and this motion only, and for no other purpose, and in no way submitting to the jurisdiction of this court, but at all the times objecting and excepting thereto, and move the court to quash and set aside the purported service upon them purporting to have been made upon them by publication, which publication ran in the Kansas City Kansan. Because this court has no jurisdiction of the persons of these defendants or either of them. Because this court has no jurisdiction of the.subject matter involved in this action for the following reasons, to wit: That these defendants, as shown by plaintiff’s affidavit for publication service, are nonresidents of the state of Kansas, being residents of the state of Missouri. That no personal service of*205 summons has been had or obtained upon the persons of these defendants or either of them. That no basis exists or has existed for service upon these defendants or either of them by publication.”
Upon the hearing of this motion, November 21, the journal entry recites that the court—
. . finds, that said defendants, Holly Jarboe and Harriet Jarboe, should not be compelled to answer purely claims in personam, but that insofar as the action is one in rem, that the service by publication is good and should be sustained, and that if the plaintiff elects to withdraw from her petition all of her claims which is purely a claim in personam, that the motion should be overruled; and thereupon in open court plaintiff elects to withdraw all claims of a personal nature, and the court finds, that upon such election, said motion should be denied. It is therefore by the court ordered: That said claims in personam are, by reason of the election of the plaintiff, stricken from the petition and that said motion be and the same is hereby overruled.”
Whereupon the original petition was amended by plaintiff striking therefrom all claims in personam. No complete amended petition was filed, nor was the original petition then refiled, but it was permitted to remain as amended with all allegations in personam stricken.
On December 9 defendants filed a motion for an extension of time in which to plead. This was heard and allowed by the court December 16, the parties appearing by their respective attorneys. On December 30 defendants filed a motion for an order requiring plaintiff to make her amended petition more definite and certain, in fourteen particulars, in substance as follows: (1) In what manner it is claimed defendants profited by the alleged fraud; (2) whether the alleged fraudulent representations were made by Holly Jarboe, Harriet Jarboe, or Leo McShane, or all of them, and the time and place; (3) whether it is claimed the hotel had been packed by the defendants, and if so, the number of tenants, and how many moved out; (4) whether the furniture was moved by defendants, or someone else; (5) in what manner defendants prevented plaintiff from investigating the hotel property; (6) whether plaintiff demanded an abstract of the hotel property, or made an examination of the title, and if there were any claimed misrepresentations as to the title; (7) whether the exchange of property was upon an oral or written agreement, and if a written one, that a copy be attached; (8) whether that agreement was made in Kansas or Missouri, and where it was to be performed; (9) whether the alleged fraudulent representations were made to plaintiff in Kansas or Missouri, or else
On February 24 defendants filed a demurrer to the amended petition upon the ground: (1) The court has no jurisdiction of the person of the defendants Holly Jarboe and Harriet Jarboe; (2) The petition does not state facts sufficient to constitute an action in favor of plaintiff and against these defendants.
At the hearing on this demurrer, June 10, it was stricken from the files upon the ground that it was moot, for the reason that after it was filed plaintiff had filed a second amended petition. It appears plaintiff had not given notice to defendants of this filing, and they had not pleaded thereto, and the court on its own motion gave them twenty days to plead thereto.
The second amended petition, filed March 9, 1936, reincorporated therein the allegations and prayer for personal judgment against defendants in the sum of $4,500, which had been stricken out by the court November 21, 1935.
On June 30, 1936, the defendants filed a motion which recites that they—
“. . . appear specially and for the sole purpose of challenging the jurisdiction of this court and respectfully move the court for an order striking from plaintiff’s second amended petition all the allegations and averments of paragraph nine and all other allegations and averments of other paragraphs setting up or based upon claims for personal judgment as well as the portion of the prayer demanding a personal judgment, for the following reasons: (1) That the court has no jurisdiction of the subject matter and the parties of this action save by service by publication which will not support a judgment for claims are in personam. (2) The plaintiff is now estopped to insert in her second amended petition or any other petition claims which are purely in personam for the reason that heretofore on the decision of the motion of these defendants to quash service herein on the ground that the court had no jurisdiction of claims in personam, which decision was rendered November 21, 1935, overruling the motion of these defendants to quash upon the election of plaintiff in open court to withdraw from her petition all of her claims of a personal nature; thereupon the court ordered all claims in personam stricken*207 from the petition. In reliance upon said election these defendants then filed motion for extension of time in which to plead and a motion to make more definite and certain.”
This was considered by the court and overruled July 16. On August 5 defendants filed a motion to make the second amended petition more definite and certain, which was identical with the motion to make the amended petition more definite and certain, filed December 30, 1935, and overruled January 6, 1936. This motion was withdrawn by leave of court August 13, 1936. Also, on August 5, 1936, defendants filed a demurrer to the second amended petition for the reasons: “(1) The court has no jurisdiction of the persons of these defendants; (2) Several causes of action are improperly joined; (3) The second amended petition does not state facts sufficient to constitute a cause of action against these defendants.”
This was considered and overruled by the court August 13, 1936.
Defendants appealed from the order and judgment of the court of July 16, 1936, overruling their motion to strike from plaintiff's second amended petition all allegations and averments setting up or based upon claims for personal judgment, as well as the portions of the prayer demanding personal judgment, and from the order and judgment of August 13, 1936, overruling the demurrer to the second amended petition, and from all other mesne and final orders made in the cause.
In the main the petition is drawn for rescission; it contains all essential allegations for such an action. In it there are allegations of damages and a prayer for a money judgment. When plaintiff found she had been defrauded, as she thought, she had one of two remedies open to her; namely, an action to rescind, or an action for damages. These actions differ fundamentally in several respects. Rescission seeks to hold property or to recover property previously parted with, or its value if it cannot be recovered. In damages, plaintiff in effect concedes the title to the property has passed, no effort is made to recover it, and a money judgment alone is sought. Because of the fundamental differences in these remedies they cannot be commingled. The petition must be drawn on a definite theory. (Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965.) Neither can the action be brought first in rescission and then be changed to an action for damages, or vice versa. (Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Hamilton v. McGinnis, 119 Kan.
Defendants contend plaintiff is now estopped from claiming relief in personam against them in the second amended petition for the reasons that at the hearing of the motion to quash the service, November 21, 1935, the court held the service to be good insofar as plaintiff sought relief in rem, but not to be good for the purpose of enabling plaintiff to obtain relief in personam, and ruled: “If the plaintiff elects to withdraw from her petition all of her claims which is purely a claim in personam, that the motion should be overruled,” and that plaintiff then, in open court, elected to withdraw all claims of a personal nature and did amend the original petition by deleting them therefrom. Just what words were deleted is not shown, but we presume they were the allegations and prayer for damages in the sum of $4,500. Defendants contend that, relying upon these matters being taken out of the petition, they pleaded to the petition and would now be substantially prejudiced if the matters so deleted were set up in a second amended petition, citing Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785; Zimmerman v. Barnes, 56 Kan. 419, 43 Pac. 764. These cases are to the effect that it is improper for a plaintiff to get a nonresident of the county or of the state into court to litigate the status of property situated in the county, and then by an
At the time of the ruling on the motion to quash the service, November 21,1935, the court was not ruling upon motions or pleadings which had not then been filed. Later, defendants moved for additional time to plead, moved to make the petition more definite and certain in many particulars, and demurred to the petition on the ground, among others, that the court had no jurisdiction of the subject matter of the action. This was voluntary upon their part, and in doing so they made a general appearance and submitted themselves to the jurisdiction of the court for the purpose of litigating the action in rescission, but not for the purpose of defending a personal action for damages.
The judgment of the court below is reversed with directions to sustain the demurrer to the second amended petition, and that such further action as may be taken in the case be in harmony with this opinion.