Branner v. Chapman , 11 Kan. 118 ( 1873 )

The opinion of the court was delivered by

Valentine, J.;

This action was commenced in the district court of Coffey county by Benjamin Branner as plaintiff against C. B. Chapman and Allen Crocker, county clerk of Coffey county, as defendants. A summons was issued by the clerk of said court and directed to the sheriff of said Coffey county. The summons was served on Chapman alone, and it was served on him by a deputy-sheriff of Lyon county. No service of any summons was made on Crocker; and the deputy-sheriff of Lyon county had no authority to serve said summons on Chapman except such authority as he might have by virtue of being said deputy-sheriff. The defendant Chapman by his counsel made a special appearance in the action, and moved the court below to dismiss the action for want of jurisdiction. 'The court sustained the motion and dismissed the action. The plaintiff now brings the case to this court, and asks that the order of the district court dismissing said action shall be reversed. We do not perceive any error in the ruling of the court below. The service of the summons was certainly irregular if not illegal and void. A sheriff of Lyon county has no legal right merely by virtue of being such sheriff to serve a summons directed to the sheriff of Coffey county, and the deputy-sheriff of Lyon county has no greater power in this respect than the sheriff of said county himself has. The summons must always (if served in the state) be served by the officer to whom it is directed, or by his deputy, or by some person duly authorized by such officer to serve it: (Gen. Stat., p. 278, §106; Code, §§63, 66;) and it cannot legally be served by any other person. Therefore, whenever a summons is directed to one officer and is served by another, as in this case, we think the service should be set aside; and this is the proper practice. In the present case the parties gave the court no alternative but to hold the service bad and dismiss the action, or to hold it good and allow further proceedings to be had and judgment to be entered upon it. And, as the service was unquestionably bad, and as this was the only service in the case, we think the court did not err in dismissing the action. A special appearance to contest the jurisdiction of the court does not give the court jurisdiction. The order and judgment of the court below must be affirmed.

All the Justices concurring.