Kauter v. Entz

The opinion of the court was delivered by Schoonover, J.: The principal question in this case is, Did the Finney county district court obtain jurisdiction of the persons of John O’ Loughlin and [791] Charles Shultz by service of summons and their appearances in the Finney county district court? Plaintiff in error in his brief sets out, among others, the following specifications of errors : “ Third. — That the district court erred in sustaining the demurrer of Henry Entz to the plaintiff’s second amended petition and rendering judgment for costs in favor of said Entz against said Kauter. . . . ” “ Fifth. — The district court erred in sustaining the first motion by defendant Shultz to quash and set aside the summons and service on him, the said Shultz, over the objections and exceptions of the said plaintiff. “ Sixth. — The district court erred in sustaining the second motion filed by said Shultz to quash and set aside a summons and the service thereof on him, the said Shultz.” “ Tenth. — The district court erred in sustaining the plea in abatement by the said O’Loughlin and in rendering a judgment for costs against said Kauter. Other specifications of error are set out in plaintiff in error’s brief, but it will be unnecessary to consider them, as they merely present the same question as the specifications here set out, but in a different form. At the outset we are met by an objection of counsel for defendants in error to the consideration by us of the third, fifth and sixth specifications of error, and we must hold that the objection is well grounded. The order sustaining the demurrer filed by Entz and entering final judgment in his favor was made on the 10th day of May, 1897, and the petition in error was not filed until June 4, 1898, more than one year from the date of the final judgment, and this court cannot, therefore, review the alleged error. (Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423.) The ruling quashing and setting aside service of the first summons served on Shultz was made May 10, [792] 1897, and the petition in error having been filed more than one year thereafter, this court is without jurisdiction to review the alleged error. (Newberry v. A. K. & C. Rly. Co., 52 Kan. 613, 35 Pac. 210.) The case-made was not served on defendants until nearly nine months after the final order quashing the second summons served on Shultz, and, as it does not appear from the record that the court made any order extending the time for serving a case, it must be held that, under sections 588 and 589, chapter 95, General Statutes of 1897, the case was not served in time, and the plaintiff cannot now ask to have the ruling reviewed. (Ætna Life Ins. Co. v. Koons, 26 Kan. 215.) The only error assigned in plaintiff in error’s brief which this court has power to review and which it is necessary to consider is the ruling sustaining O’Loughlin’s plea in abatement, and, in determining this question) we find that it is not necessary to decide whether jurisdiction was obtained by any of the various writs of summons. We must hold that by filing his demurrer the defendant O’Loughlin entered a full appearance to the action. (Carter v. Tallant, 51 Kan. 516, 32 Pac. 1108; The City of Crawfordsville v. Hayes, 42 Ind. 200.) In the last-named case it was held that a full appearance to an action waives all defects in the process and in the service thereof. O’Loughlin filed his demurrer after the plaintiff had elected to stand on the replevin undertaking, and the jurisdictional question was clearly presented. Had the plaintiff elected to stand on the supersedeas bond, the question of jurisdiction as to O’Loughlin’s person would probably not have arisen, since service of summons was made on Entz in Finney county, the county where the action was brought. The petition in error is dismissed as to defendants [793] in error Henry Entz and Charles Shultz, and the judgment of the district court on the plea in abatement of defendant in error John O’Loughlin is reversed, and the cause remanded with instructions to overrule said plea in abatement.