Davies v. Lutz

Citations

• 105 Kan. 531
• 185 P. 45
• 1919 Kan. LEXIS 123

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Action on Note — Fraud Pleaded — Order for Additional Parties — Summons Issued to Another County. The assignee of a real-estate mortgage brought an action thereon in the county in which the property was situated, against a purchaser thereof who had assumed the payment of the debt. The defendant, having obtained leave to file an answer and cross petition and “to make additional parties defendant,” filed a pleading which included a counterclaim against the plaintiff for damages resulting from fraud practiced to induce him to purchase the property, and a demand on the same account against several new parties who were alleged to have participated in the fraud. A summons for the new defendants was served -upon them in another county, where they resided. They moved to quash the service on the ground that they had not been made parties by any order of the court, and that the situation was not such as to warrant summons for them being issued to another county. Held, that</p> <p>(1) The permission granted by the court for the defendant to make additional parties, although they were not named or described, was a sufficient authority for their being made defendants by the action of the original defendant; and</p> <p>(2) Inasmuch as the original defendant, by the voluntary act of the plaintiff, had acquired the right to prosecute in that proceeding a claim against him based upon the alleged fraud, the right followed to issue summons to another county for other persons charged with liability upon the same cause of action.</p>