123 Kan. 581 | Kan. | 1927
The opinion of the court was delivered by
This action was brought by Martin Van Burén against Tom Pratt and Walter Gann to recover damages alleged to have been sustained through cattle which were in the control of defendants trespassing upon plaintiff’s premises and destroying his crops in violation of the provisions of the herd law. In the trial the jury returned a verdict awarding damages in the amount of $432.37 against Pratt, but did not award any damages as against Gann. Pratt appeals.
After the petition was filed a summons was served upon Walter Gann in Logan county, where the action was brought and where he resided, and at the same time a summons was issued to an officer of Sheridan county and served upon Pratt in that county, where he resided. Pratt moved to quash the service and dismiss the action as to him upon the ground that Gann was improperly joined with him, in that it was done solely for the purpose of obtaining jurisdic
The defendant Pratt contends that his motion to quash the service of summons made upon him should have been sustained. Aside from the fact that he filed a general demurrer and thus made a general appearance before his motion was acted upon, there was nothing in the petition to indicate a lack of good faith in bringing the action against Gann, the resident defendant, nor does the record show there was any evidence produced on the motion to show that Gann was made a party merely for the purpose of obtaining jurisdiction of Pratt, who resided in another county. The burden was on Pratt to show bad faith on the part of the plaintiff, if there was any, in bringing the action in Logan county. In the absence of admission or proof the court had no basis for holding there was bad faith in the bringing of the action against Gann, and the motion to quash the service was rightly overruled.
It is further argued that when a nonresident defendant is joined with a resident, and a judgment is finally entered-only against the
“All of the wrongdoers being jointly and severally liable, the bringing of an ■ action against all in a certain county where one of them was served with process, entitled the plaintiff to procure the service of summons on the other defendants residing in another county, where the action was brought in good faith against all and the plaintiff was acting in the honest belief that he had a cause of action against all of the defendants, and the subsequent failure to recover against the resident defendant, does not defeat jurisdiction over nonresident defendants or a recovery against them.” (Syl. |f 2.)
Finding no error in the record, the judgment is affirmed.