Hendrix v. Fuller , 7 Kan. 331 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

Plaintiffs brought suit in the district court of Douglas county. Summons was issued-on the 8th of September, 1870, to the sheriff’ of said county and returned with this indorsement:

“ Sheriff’s office, Douglas Co., Has. Deceived the within summons the 9th- day of Sept., 1870, at 10 o’clock a. m., and return the same Sept. 12th, 1870, non est; Nl T. Stephens accepting service for the within named Waddy Thompson, See acceptance.

“ Samuel Walker, sheriff of Douglas county.”

“I admit personal service of this summons, this 9th day of Sept,, 1870. Waddy Thompson, per N. T. Stephens, att’y.”

At the same date summons was also issued to the sheriff of Franklin county, and returned duly served on defendant Fuller. Oct. 11th, 1870, an answer was filed for Waddy Thompson by N. T. Stephens, his attorney. On Nov. 14th, 1870, the defendant, Fuller, by his attorneys, appearing for the purpose of the motion only, moved the court to “ set aside and hold for naught the “ service of summons heretofore made upon him the said “ Fuller, for the reason that said summons was illegally “ and improperly issued and sepved, and is void and of “ no effect in this, to-wit: That this action is brought in “ Douglas county, and the defendant Fuller resides in “Franklin county, and service of said summons was “ made upon him in said Franklin county : That the said “ Thompson, his co-defendant was not at the time of the “issuance of said summon a resident of said Douglas “ county, nor has he been summoned therein: That at “ the time of the issuance of said summons, no service of “ any kind had been made upon the said Thompson, nor “had any legal acceptance or waiver of service been “ made in behalf of said Thompson.” On the same day he filed in like manner a motion to dismiss the action on the ground of want of jurisdiction of the parties, alleging that neither of the defendants resided or had ever resided in Douglas county, nor had either of them been summoned therein. The first of these motions was sustained, the second overruled. Did the court below err in sustaining the motion to set aside the service as to Fuller ?

I. No objection is made as to the manner of service on defendant Fuller, nor to the sufficiency of the return of the sheriff of Franklin county. It is claimed that the district court of Douglas county had no jurisdiction of the parties, and that there was no authority in law for the issue .of summons to Franklin county at the time it was done. Sections 55, 60, and 67, of the code are as follows :

“ Sec. 55. Every other action must be brought in the county in which the defendant, or some one of the defendants, reside or may be summoned.”

“ Sec. 60. Where the action is rightly brought in any county, * *■ * a summons shall be issued to any other county against any one or more of the defendants at the plaintiff’s request.”

“ Sec. 67. An acknowledgement on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service.”

i service ment°bymor“ne7' .The return of the sheriff may be considered 'prima facie evidence that neither of Ue defendants resided in Douglas county. The defendant Fuller was not summoned in that county. Was the defendant Thompson, within the meaning of the term, aB used in section 55 ? That an attorney may take any ordinary step in a case for a party, and taking it, will be presumed to have done so by that party’s authority, is unquestioned. Entering an appearance is one of those steps. An attorney filing an answer, making a motion, or simply filing an appearance for a defendant, brings that defendant into court. If an attorney is presumed to have authority, when entering a voluntary appearance, why shall he not also be presumed to have authority when making an acknowledgement on the back of a summons ? The effect of each act is the same. By each act the party is brought into court. “ Only this, and nothing more.” This, it must be remembered, is simply a question of presumptions. Any one, not an attorney, may, if in fact authorized, enter the appearance of a party, or make acknowledgement for him on the back of a summons. The only difference is this : The attorney is presumed to have authority; one who is not an attorney must show his authority. We conclude then, in the absence of proof to the contrary, that the act of the attorney in making an acknowledgement of service on the back of the summons was authorized by the defendant Thompson.

2. When sumteuetomotiier cou“ty' II. The statute makes the acknowledgment equivalent to service. It is the same as though the summons had been “ served ” upon him. When a summons has been served upon a party, he has been summoned. Counsel for defendant Fuller claims that, though this may bo sufficient to give the court jurisdiction of the defendant Thompson, it cannot give the right to proceed in another county against Fuller. The letter of the statute makes no such limitation of the effect of acknowledgment of service; nor does the spirit of the statute authorize it. The policy of the law is to limit the number of the suits; to have one controversy determined in one suit, before one tribunal, no matter how many parties there be. And when one tribunal obtains jurisdiction of one of the parties defendant, it should be permitted to bring in all the others.

3. Parties; jomaSguTáítor. ITT. Again, it is claimed that Thompson and Fuller are improperly joined as defendants. The suit is on a promissory note made, a,s alleged, by Fuller, to the order of Thompson. It is alleged that Thompson by his indorsement on the back of the note transferred the same to plaintiffs, and that by reason of such indorsement he has become liable to the plaintiffs as guarantor. Judgment is prayed against Fuller as principal, and Thompson as “ surety.” It is insisted that “ a note, and a guaranty written upon it, are not the same obligation,” and that it is improper to unite in one suit a cause of action against the maker with one against the guarantor of a note. Without considering what would be the rule independent of the statute, we think section 39 of the civil code determines the question: “ Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and indorsers and guarantors, may all or any of them be included in the same action, at the option of the plaintiff.”

The order of the court below must be reversed.

All the Justices concurring.