Simcock v. First National Bank

The opinion of the court was delivered by Valentine, J.: In this case the service of the summons was made on the defendants below (plaintiffs in error) on the return-day thereof. Such a service is irregular and voidable, and a judgment founded thereon may be reversed, vacated or set aside at the instance of the judgment-debtor, in any proper proceeding therefor, provided no waiver of service has been had in the case by appearance or otherwise. (Dutton v. Hobson, 7 Kas., 196; Armstrong v. Grant, 7 Kas., 285.) In the present case there was an appearance by all the defendants below in about the same form. The appearance of G. M, Simcock is in the following form, to-wit: “And now comes the defendant G. M. Simcock, by his attorneys Hughes & Bradley, and appearing for the purpose of this motion only moves this court to dismiss the above-entitled action, and to set aside the summons in said action so far as Simcock is concerned, for the reason that said summons in said action was served upon said Simcock on the return-day of said summons. Said summons was issued by the clerk of said court on the 19th of February 1874, and was made returnable on the 23d day of February 1874, and was served on said Simcock on said 23d of February. “Hughes & Bradley, Attorneys For G. M. Simcock for the purpose of this motion only.” The appearance in this motion was a special appearance merely for the purpose of contesting the jurisdiction of the court — merely for the purpose of contesting the regularity of the service of the summons, and cannot be construed into a waiver of jurisdiction, or a waiver of service. The motion [531] itself shows that the appearance was for the purpose of the motion only, and that the attorneys were attorneys for the purposes of the motion only. And it also shows that the purposes of the motion were to contest the jurisdiction of the court, and the service of the summons, and not to waive jurisdiction and service. And we do not think that jurisdiction or service, or indeed anything else, was waived by said appearance. Nor did said appearance cure the irregular service already made. Possibly the court below did not err in overruling said motion as it'was made — the motion not being to set aside the service of the summons, (as it should have been made,) but to set aside the summons itself and to dismiss the action. But after the motion was overruled, then what was the court below to do? The plaintiff gave the court no alternative but to render judgment on said service, or to dismiss the action. Now if the court had dismissed the action under such circumstances, probably it would not have erred. (Branner v. Chapman, 11 Kas., 121.) But to render judgment upon such a service, as upon a default, as the court below did, was such an error that this court must reverse the judgment. (Dutton v. Hobson, supra.) We have taken no notice of the irregularity in issuing the summons, in making the return-day thereof only four days from the date thereof, instead of ten days, as neither counsel has called our attention to it. We have considered the summons as though it was regular in every respect, and the full time given'in which to return the same and in which to answer. Judgment reversed, and cause remanded for further proceedings. All the Justices concurring.