Moses v. Hoffmaster

The opinion of the court was delivered by Cunningham, J. : The plaintiff in error in this case contends that the judgment cannot be sustained because no legal service of summons was ever made upon the intestate, John M. Becker; that when service was made upon him he had been carried within the jurisdiction of the court against his will, and, being in the custody of the law, no legal service could be made upon him. This question is quite elaborately argued by both parties to this action. It is also suggested by the defendant in error that, even if the contention of the plaintiff in error in this respect is correct, still the judgment of the court below must be sustained, because of the voluntary appearance of the administrator by the paper consenting to the revivor of the action [147] as against him, and by his motion filed on November 9, 1898, wherein he invoked the action of the court to set-aside the default judgment already rendered in the action, and asked “for such other and further relief as seems to the court proper and right.” If we shall admit that plaintiff in error is correct in his contention that the service of the summons upon Becker, made at the time it was, was not such as would bring him into court, yet it is clear that such exemption from service would be a personal one. Such service is not absolutely void; it would be good unless exemption therefrom be claimed. While Becker, prior to his death, filed a motion to quash the summons as served upon him, no motion was filed to quash the second summons, unless the one of November 14 might be such, but prior to that time the plaintiff in error, as Becker’s administrator, had voluntarily gone into court and consented to the revivor of the action as against him, and this without any objection whatever upon his part. Then by his motion of November 9 he clearly submitted himself to the jurisdiction of the court and, without insisting upon any privilege which decedent might have had, asked therein for affirmative relief for himself. It is well settled in this state that this cannot be done. A party cannot at the same time challenge the jurisdiction of the court over him and also invoke the aid of the court in non-jurisdictional matters, and then, when the jurisdictional matter has been held against him, say that he was not in court. In Meixell v. Kirkpatrick, 29 Kan. 683, this courstates the rule as follows : “A party who denies the jurisdiction of the court over his person must first present this single question. He may not mingle with his plea to the jurisdiction [148] other pleas which concede jurisdiction, and thereafter insist that there was error in overruling his plea to the jurisdiction." This has been followed by the court on several occasions since that time and is clearly the correct rule of law, and we think that in this case, both by his consent to the revival of the action in his name, and by his motion filed on November 9, he- entered his voluntary appearance in the court, and from thence on was in court for all purposes. Plaintiff in error, however, contends that, because the services of summons made upon Becker on April 25 and on June 18 were both void, Becker was not brought into court by reason of the service- of such summons, and because the consent to the revivor was not made until more than sixty days after the filing of the petition, that therefore the attachment orders must fall, and cites the cases of Jones v. Warnick, 49 Kan. 71, 30 Pac. 115, and Kincaid v.Frog, 49 id. 766, 31 Pac. 704, in support of his contention. We think that neither of these cases is in point. In both, the rights of third parties who had become interested in the attached property were involved. These cases were clearly decided rightly under section 81 of the code of civil procedure (Gen. Stat. 1901, § 4515). In this case the rights of third parties had not intervened. As we have suggested, the service of summons was at most only voidable. Neither Becker nor his personal representative need have availed themselves of such personal privilege if they had not so chosen. Plaintiff in error did not so choose, because, as we have seen, he made a general appearance in court. During all this time the action was pending and undisposed of. [149] Without passing upon the question as to whether Becker under the circumstances had a right to claim the privilege of exemption from summons, we do find •that there was such an appearance by the plaintiff in error as to subject him to the jurisdiction of the court; therefore the judgment rendered against him was correct and will be affirmed. Ellis, Pollock, JJ., concurring.