First National Bank v. Geneseo Town Co.

The opinion of the court was delivered by Horton, C. J.: This action was commenced by the First National Bank of Emporia, in Lyon county. Service was made upon the defendant H. C. Cross in that county, and service upon the Geneseo Town Company was made upon the president of that company in Barton county. The petition alleged, among other things, that “after the paper (or written order) was indorsed by H. C. Cross, it became, was, and is, and ever since has been, the property of the First National Bank of Emporia, Kas.; that thereafter the paper was duly presented for nonpayment against all the parties therein, who were indorsers, and thereupon, and ever since said time, the said H. C. Cross has been responsible to the plttintiff, as indorser of said paper, for the sum thereof; that although long past due and often demanded from the said defendant the said town company, and the said defendant H. C. Cross, they, and each of them, have wholly failed, refused, and neglected, and still fail, refuse, and neglect, to pay .the plaintiff the amount due upon said paper, or any part thereof; that there is now due and owing to the plaintiff from the said defendants, upon the said paper and the acceptance thereof, the sum of $1,700, with interest on $850 from April 1, 1888, and on $850 from July 1 'to date.” The town company did not appear by answer or otherwise. No motion to set aside the service of the summons upon its president was presented or made. No plea in abatement or other exception was taken to the service. Judgment was rendered for $1,816.68 and costs, against the Geneseo Town Company as principal, and against H. C. Cross as surety. It was said in Rullman v. Hulse, 32 Kas. 598: “Before a summons can be rightfully issued from one county to another, the person served with the summons in the county in which the action is brought must have a real [220] and substantial interest in the subject of the action, adverse to the plaintiff, and against whom some substantial relief may be obtained, and the action must be rightfully brought in the county in which it is brought, and as against the person served with summons in such county.” See, also, Brenner v. Egly, 23 Kas. 123; Dunn v. Hazlett, 4 Ohio St. 435; Allen v. Miller, 11 id. 374. Assuming, under the facts in this case, that H. C. Cross was not a proper and necessary party defendant, (Iron Works v. Paddock, 37 Kas. 510,) the question presented is, whether the judgment rendered in Lyon county was wholly void or voidable only. The petition stated a good cause of action against the town company. The court had jurisdiction of the subject-matter. The summons was served upon the president of the town company in another county, and, as he had power to receive notice for and on behalf of the corporation, the summons was actually served upon the town company; service upon the president being service upon the corporation. (Hoffield v. Board of Education, 33 Kas. 644.) If Cross was not a proper and necessary party,.it may be said that the summons was erroneously or improperly served upon the president of the town company in another county. (Civil Code, §§ '34, 35, 36, 37, 46, 47, 48, 49, 50, 55, 60.) But a defendant may waive an irregular or erroneous service. We think, if a civil action is brought against a defendant in the wrong county, but personal service of a summons is made upon him and a defendant in the county where the action is pending, and the court has general jurisdiction of the subject-matter, and there is sufficient in the petition to challenge the attention and decision of the court as to the liability of both defendants, and the court holds that both defendants are liable, and renders judgment against both, the judgment rendered upon default against the defendant served in the wrong county is not void. The defendant in such a case ought to take advantage of the defective service by a motion, plea, or otherwise. If the service or sthe jurisdiction of the court acquired by its process is not challenged in any way before or after judg [221] ment, in the court rendering the judgment, a defendant cannot avail himself of a review or correction of such judgment through some other court of ,the same jurisdiction but having no appellate power. (Meixell v. Kirkpatrick, 28 Kas. 316; Rullman v. Hulse, 33 id. 670.) In Drainage Comm’rs v. Giffin, 25 N. E. Rep. (Ill.) 995, the court said: “Tire statutes, as has frequently been held in this court, give the defendant a privilege merely of being sued in the county where he resides or may be found, and that to avail himself of such privilege he must do so in apt time, by plea to the jurisdiction, or he will be deemed to have waived it.” (Drake v. Drake, 83 Ill. 526; Railway Co. v. Williams, 77 id. 354; 1 Black, Judgm., §§ 86, 223, 224.) In Stark v. Ratcliffe, 111 Ill. 75, the syllabus contains the following: “The constitution of Texas expressly gives the district court of that state jurisdiction in all suits for the trial of title to land, but there is a statute of that state requiring suits for the recovery of land to be brought in the county where the land lies. An action of ejectment for land in such state was brought in the district court, but not in the county where the had was situate, and no objection being made to the jurisdiction, the court- rendered judgment for the plaintiff. Held, That as that court had a general jurisdiction over the subject-matter, its judgment could not be treated as void in a collateral action in this state, and that such judgment was admissible in evidence to show an eviction of the defendant in ejectment.” In that case, Mulkey, J., speaking for the court, said : “We understand the rule to be, that if a local action is brought against one in the wrong county, and the court in which the action is brought has a general jurisdiction in that class of cases, the defendant must plead to the jurisdiction, or otherwise take advantage of the irregularity, in the court where the action is brought. He will not be permitted, after having remained silent and permitted judgment to go against him, to call in question its validity for the first time in a mere collateral proceeding, as is sought to be done here. The rule as here stated we understand to be fully recognized by the courts of Texas, to whose laws we must look in determining [222] the validity of this judgment.” (Ryan v. Jackson, 11 Tex. 391; Morris v. Runnels, 12 id. 177; Stark v. Burr, 56 id. 130. See, also, Thornton v. Writing Machine Co., 9 S. E. Rep. [Ga.] 679; Atchison v. Morris, 11 Fed. Rep. 582, and cases there cited; Larned v. Griffin, 12 Fed. Rep. 590, and cases cited; Palmer v. Rowan, 21 Neb. 452, and cases cited; 1 Tidd, Prac., ¶ 81; notes to Prentiss v. Commonwealth, 16 Am. Dec. 784; Matthews v. Puffer, 10 Fed. Rep. 606; Wilson v. Coolidge, 42 Mich. 112.) The judgment of the district court will be reversed, and the cause remanded for further proceedings. All the Justices concurring.