Printable Format8-401. Service of process against nonresidents or their representatives; definitions. (a) As used in this act, each of the following words and terms, unless the context clearly requires otherwise, shall have the meaning respectively ascribed to it in this section:
(1) "Nonresident" or "nonresident person" shall mean: (A) A person who is a nonresident of this state; (B) a person who is a resident of this state and who departs from this state subsequent to the accident or collision from which the action or proceeding against such person or a representative of such person arose and remains absent from this state for thirty (30) days continuously, whether such absence is intended to be temporary or permanent; (C) a person who at the time of the accident or collision from which the action or proceeding arose was a resident of this state but who has subsequently thereto become a nonresident of this state;
(2) "representative" shall have the meaning respectively ascribed to it in subsection (1) of K.S.A. 59-102.
(b) The acceptance by a nonresident person of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of Kansas, or the operation by a nonresident person, or an authorized chauffeur of such nonresident, or agent, of a motor vehicle on the said highways, other than under said laws, shall be deemed equivalent to an appointment by such nonresident of the secretary of state of the state of Kansas, or the secretary's successor in office, to be such nonresident's true and lawful agent, upon whom may be served all lawful process in any action or proceeding against said nonresident or a representative of said nonresident growing out of any accident or collision in which said motor vehicle may be involved, while same is operated in the state of Kansas by said nonresident, or by an authorized chauffeur of said nonresident or agent; and said acceptance or operation of said vehicle shall be a signification of agreement that any such process which is so served on the secretary of state shall be of the same legal force and validity as if served upon said nonresident or a representative of said nonresident personally within the state.
History: L. 1935, ch. 72, § 1; L. 1959, ch. 50, § 1; L. 1961, ch. 54, § 1; July 1.
Law Review and Bar Journal References:
Discussed in note on venue, 3 K.L.R. 163 (1954).
Compulsory accident compensation, S.S. Alexander, 25 J.B.A.K. 227, 231 (1957).
Discussed in nisi prius decision, 5 K.L.R. 475, 753 (1957).
Statutes of limitation, 9 K.L.R. 226, 250 (1960).
Civil code of 1964, Leonard Thomas, 31 J.B.A.K. 156 to 164 (1962).
Civil code procedures for obtaining jurisdiction over nonresidents, Russell D. Jacobson, 12 K.L.R. 51 (1963).
Enlarged jurisdiction under the new code of civil procedure, Leonard O. Thomas, 33 J.B.A.K. 87 (1964).
1963-65 survey of civil practice, Earl B. Shurtz, 14 K.L.R. 171, 172 (1965).
Jurisdiction under "long arm" statute (K.S.A. 60-308), Dennis L. Bieker, 5 W.L.J. 240, 241 (1966).
"Civil Procedure—Service of Process—Extraterritorial Jurisdiction on Foreign Corporations Transacting Business Under the 'Long Arm' Statute," Ray L. Borth, 7 W.L.J. 375, 380, 382 (1968).
Provisions herein cited as alternatives in "Long Arm and Convenient Forum," Robert C. Casad, 20 K.L.R. 1, 4 (1971).
Uniform Residential Landlord and Tenant Act in "URLTA, Kansas, and the Common Law," Michael J. Davis, 21 K.L.R. 387, 392 (1973).
"Tolling the Statute of Limitations: Restricted by Enlarged Personal Jurisdiction," L. Stephen Garlow, 18 W.L.J. 565, 573, 574 (1979).
"Barring the Slayer's Bounty: An Analysis of Kansas' Troubled Experience," John F. Kuether, 23 W.L.J. 494, 525 (1984).
CASE ANNOTATIONS
1. Action against or service upon nonresident's executor or administrator not authorized. In re Estate of Rogers, 164 Kan. 492, 500, 190 P.2d 857.
2. Applies only where action arises out of operation of motor vehicle on highway. Kelley v. Koetting, 164 Kan. 542, 543, 544, 545, 548, 549, 190 P.2d 361.
3. Ownership of motor vehicle immaterial to applicability of section. Eisman v. Martin, 174 Kan. 726, 727, 728, 729, 730, 731, 732, 733, 258 P.2d 296.
4. Section does not violate section 16, article 2 of the Kansas Constitution. Eisman v. Martin, 174 Kan. 726, 727, 728, 729, 730, 731, 732, 733, 258 P.2d 296.
5. Application of section not limited to nonresident operating own motor vehicle. Eisman v. Martin, 174 Kan. 726, 727, 728, 729, 730, 731, 732, 733, 258 P.2d 296.
6. Court has jurisdiction of nonresident motorist served hereunder. Ruggles v. Smith, 175 Kan. 76, 77, 78, 79, 259 P.2d 199.
7. Petition held to meet requirements of K.S.A. 8-402; act construed. Atkinson v. Dalton, 186 Kan. 145, 146, 147, 148, 149, 348 P.2d 644.
8. Applied; service on Oklahoma school district through secretary of state proper. Thurman v. Consolidated School Dist. No. 128, 94 F. Supp. 616, 619.
9. Statute is valid exercise of legislative power; discussed; removal to federal court. Merz v. Dixon, 95 F. Supp. 193, 194, 195, 196, 197.
10. Failure to assert counterclaim may preclude later independent suit. Henley v. Panhandle Eastern Pipeline Co., 138 F. Supp. 768, 772.
11. Notice to defendant must be given after service had on secretary of state. Bond v. Golden, 273 F.2d 265, 266, 267.
12. Amendment applied retroactively; statute procedural not substantive; "nonresident" includes resident who departed state after accident. Jones v. Garrett, 192 Kan. 109, 110, 112, 115, 386 P.2d 194.
13. Loading and unloading vehicle at dock incidental to operation on highway; service hereunder proper. Klein v. Wells, 194 Kan. 528, 532, 533, 400 P.2d 1002.
14. Mentioned; K.S.A. 60-308 not materially different in substance from this section. Woodring v. Hall, 200 Kan. 597, 603, 438 P.2d 135.
15. Cited; tolling provision of K.S.A. 60-517 not activated when substituted service available. Carter v. Kretschmer, 2 Kan. App. 2d 271, 272, 577 P.2d 1211.
16. K.S.A. 60-517 not applicable to toll statute of limitations when substitute service of process available. Garrison v. Vu, 8 Kan. App. 2d 189, 192, 653 P.2d 824 (1982); reversed, see Garrison v. Vu, 233 Kan. 236, 662 P.2d 1191 (1983).
17. Substituted service not complete until pleadings and notice delivered to defendant; cannot be completed if whereabouts of defendant unknown. Garrison v. Vu, 233 Kan. 236, 238, 239, 662 P.2d 1191 (1983).
18. Cited; improper to allow retrospective application of procedural statute (K.S.A. 60-203) where vested defense exists prior to effective date thereof. Jackson v. American Best Freight System, Inc., 238 Kan. 322, 323, 325, 709 P.2d 983 (1985).