Bury v. Conklin , 23 Kan. 460 ( 1880 )

The opinion of the court was delivered by

Valentine, J.:

This was an action on certain promissory

notes. The defendant resided in Crawford county, but being temporarily present in Bourbon county, he was sued in the latter county. A summons and an order of arrest were duly issued and served upon him while he was temporarily present in Bourbon county. This was all done on June 1, 1878. On June 7, 1878, he filed a motion, supported by affidavits, which motions read as follows :

“And now comes the above-named defendant, H. Conklin, by his attorneys, A. A. Harris and W. H. Spencer, and moves the court to vacate and discharge the arrest of said Conklin, defendant, heretofore made herein, and to discharge said defendant from said arrest, and from custody, for the reason that the facts and alleged facts in plaintiff’s affidavit filed herein, on which said order of arrest was issued, claimed to justify the belief in said grounds of arrest set forth in said affidavit, are wholly false and untrue, and that said order of arrest was by said plaintiff wrongfully obtained.

“H. Conklin.

“Per A. A. Harris & W. H. Spencer, his Att’ys.”

Thereupon, on said 7th day of June, 1878, the above motion, came on for hearing'before the judge of the district court of Bourbon county, at chambers, who refused and denied the same, which said ruling is as follows:

“Now, on this 7th day of June, 1878, appeared before me at my chambers in Fort Scott, Kansas, the above plaintiffs, by C. O. French, their attorney; as well appeared said defendant in person and by his attorney, W. H. Spencer, Esq., and thereupon said defendant, by his said attorney, presented me his motion to vacate the order of. arrest heretofore issued herein, supported by affidavits; and plaintiffs also presented their affidavits resisting the same, and it appearing that plaintiffs have had due notice of the presentation of said motion to vacate said order of arrest, and having duly considered the premises and heard arguments of counsel, said motion is overruled and denied. W. C. Stewart,

“Judge Sixth Judicial District of Kansas.”

On July 1, 1878, the defendant appeared specially, by his attorneys, and filed a motion to set aside the service of the summons issued in this case. On September 2, 1878, he again appeared specially, by his attorneys, and filed a motion to vacate the order of arrest issued and served in this case. These motions raised the same question, to wit, that the defendant had been sued in the wrong county, and therefore that the court should not take jurisdiction of the case. The grounds for each of said motions were substantially as follows: “The plaintiffs combined and confederated with one W. P. D. for the purpose and with the intention by fraud and a trick to induce the defendant to come out of Crawford county aforesaid into this (Bourbon) county, so that service of a summons could be made on him in this county,” and “so that he might be arrested on an order of arrest in this action in this county instead of in Crawford county,” “and for no other purpose or reason whatsoever,” and that the defendant, because of these inducements, and for no other reason, went into Bourbon county, where said service and arrest were made.

These motions were heard together on September 20,1878, on the same evidence. The defenses made by the plaintiffs to the motions were as follows: 1. The defendant, by making a general and voluntary appearance in the action and for a purpose other than to contest the jurisdiction of the court, waived all irregularities which may have intervened in bringing the action. 2. The plaintiffs did not directly or indirectly induce, nor did they use any means to induce, the defendant to come into Bourbon county, so that he might be sued and arrested in that county. Upon the evidence introduced, the court sustained both of said motions — setting aside the service of summons and vacating the order of arrest. Was this error? We think it was. For while the evidence as to whether the plaintiffs had induced the defendant to go into Bourbon county, so that he might be sued and arrested in that county, is very conflicting, and while it is difficult to determine upon which side of this question the preponderance of the evidence lies, yet there can be no doubt upon the other question. The defendant did unquestionably make such an appearance in the action as will preclude him from raising any question as to the regularity of the service of the summons, and the service of the order of arrest. If the defendant had desired to raise the question as to whether he was rightfully sued in Bourbon county or not, he should have raised the question before making any appearance in the case, except to raise such question, and before doing anything that might unnecessarily increase the amount of the costs and expenses, which some person will eventually have to pay. If the defendant had desired to have the service of the summons, and the service of the order of arrest set aside, he should have made motions to that effect, before doing anything else in the case. But instead of doing this, he first made a general appearance in the ease “in person and by his attorney,” for the purpose of contesting the truth of the grounds upon which the order of arrest was issued. He first chose to take his chances upon the merits of the order of arrest, before moving to vacate it upon any technical grounds. And by doing this, he admitted the jurisdiction of the court to hear and determine the matter upon its merits. And now, after obtaining the decision of the court upon the merits of the question, and after causing costs to be made in the case, he cannot repudiate his submission to the jurisdiction of the court. Courts cannot be trifled with in that manner. We think it is a general principle of law, with probably no exception, that where a party voluntarily appears to the merits of any controversy, he thereby waives all irregularities which may have intervened in getting him into court. This, how-over, would not prevent the court, in the exercise of a wise judicial discretion, from setting aside any service obtained by any gross abuse of judicial process. We have had occasion to examine similar questions before, and our decisions will be found in the following cases: Hefferlin v. Stuckslager, 6 Kas. 166; Cohen v. Trowbridge, 6 Kas. 385, 393; Hendrix v. Fuller, 7 Kas. 331, 337; Carver v. Shelly, 17 Kas. 472.

The judgment of the court below will be reversed, and oause remanded for further proceedings.

All the Justices concurring.