The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-11-12
COULDN'T HELP TT
COURT OF APPEALS COMES TO FRITZ
SOHNITZLEk'S AID.

Was Sued on a Note while Absent in the
Mountains and Never Saw the summons
Left at His House by the sheriff-Judg-
ment was Found Against Him, but the
Appellate Court Says He Does Not have
foPay It-Opinion is Rendered by Judge
Dennison-Detzi!s of the Case-Chief
Points in the Opinion.
Very important and interesting is the
decision handed down yesterday by the
Kansas court of appeals in this city in
the case of Fritz Schnitzler against the
Fourth National bank of Wichita.
Many people do not know that they
are liable to be brought into court and
taxed UP with a judgment without be-
Ing personally notified. For instance
: Il man is security on note, goes away
For the summer on a vacation to rest his
bones, he may get into trouble. If he
IS sued as security on that note, the
Eheriff slips a summons, or notification
Of trial, under the front door Of his de-
serted residence. That is sufficient.
Although he knows nothing about it,
he is in court and likely TO be out OF
pocket as he will discover when he re-
turns from his excursion. There are
exceptions, however, and the case de-
cided, Is one of the exceptions. This
Is what happened to Fritz Schnitzler
IN July, 1890, Fritz Schnftzler took his
family and went to the noun tainS.
Some time before, he had gone on a
F,romissory note of the old Journal Pub
fishing company to the Fourth National
bank. This not had been renewed
from time TO time the officials of the
bank pinned the renewal notes to the
original note. ScnnitZler was Sc
curity on the original ote but
not on the renewals he said he
thought ne was free of circumference
or obligation or danger of suit the day
he packed up and sailed off to the Rock
les in order to gain more fat Nine
days after Schnitzler left he was sued
rs a guarantee on the original note. He
was summoned into court without know
Ing It, the sheriff leaving the summons
at the Schnitzler residence. He return
ed home ON Aug. 5. On Sept. 8, in the
court of common pleas, judgment was
rendered against him for 81, 254 and cost
and he says not until he was called
upon to pay it. did he know that he had
been sued al all.
He at once had the bank enjoined
from collecting the sum under execu-
ton and carried the matter TO the SUI
preme court. From that court it was
transferred to the court of appeals here
and Judge Dennison rendered the opin-
ion, which reverses the judgment of the
common pleas court. Robbed of legal
verbiage. the opinion means this:
The bank sued on the wrong note, the
giving of a renewal note cancellng the
original note which was sued on. \
aaan likely TO be sued must use due dill
gence TO met a summons, but when he
does not anticipate summons, he has
q right to go away on a vacation with
"a feeling Of perfect security.
OPINION ON THE MATTER
A portion Of the opinion reads as fol-
lows:
"The plaintiff (Schnitzler) relies Who'll
ny upon an absolute want Of knowledge
1hat any suit was brought against him.
The summons was served by leaving a
copy thereof at the usual place of resi-
dence of this plaintiff on the 22nd day
of July, 1880. On the 10th day of July.
1890, the plaintiff left his residence clos
ed and hooked and with his family went
of Colorado. and remained absent until
Aug. ). 1890. The evidence is uncontra-
dicted that neither the plaintiff or any
member Of his family knew anything
subout the summons and that the plain
Riff did not know suit had been brought
mn1Tl after the judgment had been rem
dered, and that THE first he knew of ii
WAS when he was requested to pay the /
judgment. The petition alleges and /
tie plaintiff (Schn6tzler) testifies that
he did mot know that the defendant in
error claimed that he was personally
liable on said note. Upon GROSS exani |
nation the plaintiff stated that there 4
had been talk about renewing the note /
Of the Journal Publishing company, but /
that he supposed that 1T was a renewal
For the company, and that he was 10
and did sign as vice-president of the /
company and not in his Individual ca 4
pacity. This note the defendant (the
Fourth National bank) refused to ac- /
cept because this plaintiff signed II as
but it does not clearly /
appear whether this note was consid-
Erred by him as a renewal of the origin
al note or renewal of the latter notes
which this plaintiff had not signed. For
all that appears to the contrary the
plaartifT might not have supposed they
were trying to have him become per
Sonally responsible for the renewal
notes and that he declined TO do so.
Now is this such a state of facts as
show THAT the plaintiff was prevented
oy unavoidable casualty or misfortune
from defending against the the claim
II the defendant in error? He was
prevented from defending by total want
'f knowledge of the commencement or
tendency OF the suit. The notice there
d, Which the law says shall be by sum-
mons. had failed to reach him or come
10 his knowledge or to that of any
member of mis- family. No one will
,iaam that II was not a misfortune 10
De sued and have an unjust Judgment
'eTfdered against a person without his
The question. therefore To be deter
mined in this case is. was il unavos,l-
ibie- A similar case to this seems ~
lever have been decided in this state
The nearest to 1t probably is the case
u Wlnsor vs. Goddard. 10 Kans., lis. in
Which the facts We're very similar ex-
'ept that the plaintiff in error. Winsor
eft has family at home, and they d3d
iotiNng toward putting off the case or
lotny1ng the husband and father that
lie had been sued
The briefs Of ohe parties in the CASA
II oar Show a very comendable research
Lmong 1he authorities upon this poin.
careful examination OF them salts