Source or prior law:

G.S. 1868, ch. 80, §§ 20, 57; L. 1909, ch. 182, §§ 19, 58; R.S. 1923, 60-301, 60-308.

Cross References to Related Sections:

Counterclaims and cross-claims, see 60-213.

General rules of pleadings, see 60-208.

Service and filing of pleadings and other papers, see 60-205.

Summary judgment, see 60-256.

Summons, issuance, see 60-301.

Summons, on whom made, see 60-304.

Third-party practice, see 60-214.

Commencement of limited actions, see 61-2902.

Law Review and Bar Journal References:

"The Effect of the New Code on Title Examination," J. B. McKay, 33 J.B.A.K. 173 (1964).

Comment on illegitimacy in Kansas, Donald W. Vasos, 14 K.L.R. 473, 484 (1966).

Commentary on Kansas law on statutes of limitation, 18 K.L.R. 441, 454 (1970).

"Summary Repossession, Replevin, and Foreclosure of Security Interests," Thomas V. Murray, 46 J.B.A.K. 93, 103 (1977).

"Civil Procedure: Tolling the Statute of Limitations in Diversity Actions," Carol Gilliam Green, 19 W.L.J. 330, 332, 336 (1980).

"Recent Development in Kansas Civil Procedure," E. Elinor P. Schroeder, 32 K.L.R. 515.

"Pitfalls on the Road to Salvation: The Kansas Saving Statute," Steven C. Day, 59 J.K.B.A. No. 8, 19, 23 (1990).

"Service of Process by Certified Mail," Robert C. Casad, 59 J.K.B.A. No. 10, 25, 26 (1990).

"Practical Considerations-Extension For Service Of Process," Robert Telthorst, J.K.T.L.A. Vol. XVI, No. 4, 21, 22 (1993).

"Removal to Federal Court: The Practitioner's Tightrope," Charles W. Hyland, 63 J.K.B.A. No. 9, 22, 24 (1994).

"Kansas' Statutes of Repose: The Unwarranted Dichotomy," Mark A. Furney, J.K.T.L.A. Vol. XVIII, No. 3, 12, 17 (1995).

"Statutes of Limitation, Statutes of Repose and Continuing Duties under the Kansas Product Liability Act," Steve R. Fabert, 36 W.L.J. 367 (1997).

"Kansas Appellate Advocacy: An Inside View of Common-Sense Strategy," Patrick Hughes, 66 J.K.B.A. No. 2, 26 (1997).

"Is Your Lawsuit Properly Commenced?" Bryan W. Smith, J.K.T.L.A. Vol. XXI, No. 1, 19 (1997).

"Soldiers' and Sailors' Civil Relief Act Protection: An Update for the War Against Terrorism," James P. Pottorff, Jr., 71 J.K.B.A. No. 2, 17 (2002).

"Walking the Legal Tightrope: Serving Timely Process When Filing State Claims in Federal Court," Matt Corbin and Casey Tourtillott, 73 J.K.B.A. No. 9, 28 (2004).

"The Servicemembers Civil Relief Act: A Modern Replacement for The SSCRA," James P. Pottorff, Jr., 74 J.K.B.A. No. 9, 20, 25 (2005).

"Comparison of Federal and State Court Practice," David G. Seely, Charles E. Millsap and Ron Campbell, 75 J.K.B.A. No. 4, 28 (2006).

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-301, 60-308 and the 1961 Supp. thereto.

1. Action deemed commenced at date summons served upon defendant. Williams v. Board of County Commissioners, 192 K. 548, 549, 552, 553, 389 P.2d 795.

2. Petition filed against one party cannot be amended after running of statute of limitations to name new party. Skeen v. Sisters of St. Joseph, 194 K. 212, 213, 398 P.2d 587.

3. Action deemed commenced when filed when service obtained following day. Finn, Administratrix v. Veatch, 195 K. 13, 15, 403 P.2d 189. Reversed, 195 K. 410, 407 P.2d 535.

4. Even though filing of answer in state court works waiver of defense of defective service, similar waiver does not occur in federal court. Panhandle Eastern Pipe Line Company v. Brecheisen, 323 F.2d 79, 83.

5. Filing written entry of appearance is equivalent to service of process. Dotson v. State Highway Commission, 198 K. 671, 676, 426 P.2d 138.

6. Substituted service obtained within time limit. Cadwallader v. Lehman, 202 K. 738, 746, 451 P.2d 163.

7. Federal rule governs time of commencement of action in federal court for purpose of computing running of statute of limitations. Chappell v. Rouch, 448 F.2d 446, 447, 449, 450, 451.

8. Appeal from administrative decision not "action" within meaning of section; ruling by district court from such decision appealable. Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 K. 546, 550, 539 P.2d 1.

9. Applied; voidable or irregular service; commencement of new action pursuant to 60-518 authorized. Goldsberry v. Lewis, 2 K.A.2d 56, 58, 574 P.2d 566.

10. Cited; tolling provision of 60-517 not activated when substituted service under 8-401 or 60-308 is available. Carter v. Kretschmer, 2 K.A.2d 271, 272, 577 P.2d 1211.

11. Cited in finding continuing exclusive jurisdiction in divorce proceedings in district court which first obtains jurisdiction. Nixon v. Nixon, 226 K. 218, 222, 596 P.2d 1238.

12. If service of process or first publication not obtained within 90 days after petition is filed, action deemed commenced at time of service or first publication; time limit not extended. Bray v. Bayles, 4 K.A.2d 596, 598, 609 P.2d 1146. Reversed in part on other grounds: 228 K. 481, 485, 486, 618 P.2d 807.

13. Dissolved corporation may only be sued during wind-up period or trusteeship unless period extended during wind-up period. Patterson v. Missouri Valley Steel, Inc., 229 K. 481, 482, 625 P.2d 483.

14. Action not commenced until filing and service. Davila v. Vanderberg, 4 K.A.2d 586, 587, 588, 608 P.2d 1388.

15. Defendant's mere absence from state did not toll statute of limitations. Gideon v. Gates, 5 K.A.2d 23, 24, 25, 28, 30, 611 P.2d 166.

16. Action against city not "commenced within due time"; service made upon city attorney and not upon the mayor or clerk. Dunn v. City of Emporia, 7 K.A.2d 445, 446, 447, 643 P.2d 1137 (1982).

17. Motion to set aside void judgment can be made at any time even if effect is to bar plaintiff's suit. Barkley v. Toland, 7 K.A.2d 625, 627, 646 P.2d 1124 (1982).

18. Cited in affirming summary judgment for defendant; insufficient service of process. Garrison v. Vu, 8 K.A.2d 189, 192, 653 P.2d 824 (1982). Reversed, 233 K. 236, 238, 662 P.2d 1191 (1983).

19. Failure to obtain service on one named defendant does not constitute assignment of action under 40-3113a. Potts v. Goss, 233 K. 116, 119, 660 P.2d 555 (1983).

20. Service for personal injury outside 90-day period barred by two-year limitation; service on unauthorized subsidiary insufficient. Schmid v. Roehm GmbH, 544 F.Supp. 272, 278 (1982).

21. Where amendment sought to change defendant's name, period for commencing action (60-215(c)) includes applicable statute of limitations and period hereunder. Anderson v. United Cab Co., 8 K.A.2d 694, 696, 697, 666 P.2d 735 (1983).

22. Improper to allow retrospective application of procedural statute where vested defense exists prior to effective date thereof. Jackson v. American Best Freight System, Inc., 238 K. 322, 325, 709 P.2d 983 (1985).

23. Concerned solely with commencement of civil action; nowhere does 60-203 refer to filing new action after previous action dismissed. Newell v. Brollier, 239 K. 587, 588, 722 P.2d 528 (1986).

24. Section (b) should be liberally construed to insure just determination of any action despite irregularities or defects in service. Hughes v. Martin, 240 K. 370, 375, 729 P.2d 1200 (1986).

25. Kansas tort claim act case barred for plaintiff's failure to bring action within one year of reaching age 18. Hayes through Hayes v. Unified School Dist. 377, 669 F.Supp. 1519, 1531 (1987).

26. Legislature did not intend return be additional requirement for effective service by mail; "commencement" related back to original filing when service within 90 days. Hunter v. Kimberlin, 682 F.Supp. 495, 497 (1988).

27. Court's discretion abused where original action dismissed to allow refiling for service, then dismissing second action as untimely. Vogeler v. Owen, 243 K. 682, 763 P.2d 600 (1988).

28. For purposes of statute of limitations, amended complaint was deemed filed on date motion for leave to amend was filed. Wallace v. Sherwin Williams Co., Inc., 720 F.Supp. 158 (1988).

29. Extension of time must be sought and granted before expiration of 90-day period; controlling over 60-206. Read v. Miller, 14 K.A.2d 274, 281, 788 P.2d 883 (1990).

30. Specific provisions herein control over 60-206; extension relating back must be sought and granted before expiration of 90-day period. Read v. Miller, 247 K. 557, 560, 564, 802 P.2d 528 (1990).

31. Where no service effected within 90 days of original dismissal, action not commenced within due time regarding six-month period and running of limitations. Elliott v. White, O'Connor & Werner, P.A., 750 F.Supp. 451, 454 (1990).

32. Cited in examination of habitual violator act (8-284 et seq.); what constitutes "immediately preceding five years" (8-285) determined. State v. Walden, 15 K.A.2d 139, 143, 803 P.2d 1054 (1991).

33. Applicability of savings statute examined where initial action in Kansas timely but dismissed and then brought in Missouri. Penalosa Co-Op Exchange v. A.S. Polonyi Co., 754 F.Supp. 722, 734 (1991).

34. Clerical error by district court clerk in issuing alias summons does not automatically enlarge the 90-day relation back period. Slayden v. Sixta, 15 K.A.2d 625, 634, 813 P.2d 393 (1991).

35. Service of process untimely; state limitations law thereon applicable. Wandrey v. Service Business Forms, Inc., 762 F.Supp. 299, 304, 305 (1991).

36. Cited in determining whether to expand the unique circumstances doctrine. Slayden v. Sixta, 250 K. 23, 24, 25, 26, 27, 28, 30, 31, 825 P.2d 119 (1992).

37. Order granting extension need not be in writing. Cook v. Freeman, 16 K.A.2d 555, 556, 825 P.2d 1185 (1992).

38. Amendment to change defendant's name; period for commencing action includes applicable statute of limitations plus period under (a). Fennesy v. LBI Mgt., Inc., 18 K.A.2d 61, 62, 63, 64, 66, 68, 69, 70, 71, 847 P.2d 1350 (1993).

39. Cited; whether 60-102 should be used to compute time requirements unless statute expressly provides otherwise examined. State v. Johnson, 19 K.A.2d 315, 320, 868 P.2d 555 (1994).

40. Whether discretion abused by allowing depositions of third parties in a debt execution proceeding examined. City of Arkansas City v. Anderson, 19 K.A.2d 344, 346, 869 P.2d 244 (1994).

41. Whether defendant's motion for leave to answer constituted general appearance for service of process examined. Lindenman v. Umscheid, 255 K. 610, 631, 875 P.2d 964 (1994).

42. Factors to be considered in evaluating whether purported service of process has been successfully made under subsection (b). Grimmett v. Burke, 21 K.A.2d 638, 644, 905 P.2d 156 (1995).

43. Cited; trial court has authority to continue child support through school year during which child becomes 19. In re Marriage of Bunting, 259 K. 404, 408, 912 P.2d 165 (1996).

44. Claim filed at end of limitations period time barred where plaintiff failed to request extension. Storts v. Hardee's Food Systems, Inc., 919 F.Supp. 1513, 1521 (1996).

45. Noted in discussion that claims barred by 60-515(a) statute of repose may not be revived by later enacted limitations statute. Ripley v. Tolbert, 260 K. 491, 502, 921 P.2d 1210 (1996).

46. Relation back provision contained in subsection (a) applies to an amended petition. Bird v. Kansas Dept. of Transportation, 23 K.A.2d 164, 167, 928 P.2d 915 (1996).

47. Defense attorney's entry of appearance did not waive service of process; extension for obtaining service otherwise justified. Wheaton v. Ahrens, 983 F.Supp. 970, 973 (1997).

48. Formal entry of appearance by defendant satisfied service requirement in diversity action. Jenkins v. City of Topeka, 136 F.3d 1274, 1276 (1998).

49. Inmate's delivery of habeas petition to prison authorities constituted filing and was timely to toll statute of limitations; jurisdiction established despite petition's deficiencies. Taylor v. McKune, 25 K.A.2d 283, 286, 962 P.2d 566 (1998).

50. Filing an answer on behalf of a dead person as if he were still alive is fraud. Yoh v. Hoffman, 29 K.A.2d 312, 27 P.3d 927 (2001).

51. Amended petition to correctly name defendant (estate) was within period for commencing action; amended petition not barred by statute of limitations. Hinds v. Estate of Huston, 31 K.A.2d 478, 66 P.3d 925 (2003).

52. Knowledge of pendency of action is not a substitute for service. Cook v. Cook, 32 K.A.2d 214, 83 P.3d 1243 (2003).

53. Failure to obtain service in initial action causes action never being commenced and second action could not relate back to first action. Handy v. Reed, 32 K.A.2d 247, 81 P.3d 450 (2003).

54. Service on separately named codefendant did not constitute service on other defendant. Wheat v. Kinslow, 316 F.Supp.2d 944, 950 (2003).

55. To use relation-back provisions of section, plaintiff must both file a motion and obtain order granting extension of time. Tharp v. Lee, 32 K.A.2d 628, 87 P.3d 323 (2004).

56. Court administrative assistant has insufficient authority to grant oral request for 30-day extension of time. Blue v. Tos, 33 K.A.2d 404, 102 P.3d 1190 (2004).

57. No expiration of statute of limitations when amended petition was filed beyond statute of limitations but within 90 days of filing of original petition. Housh v. Hay, 35 K.A.2d 100, 128 P.3d 409 (2006).

58. Court did not err in refusing to apply subsection (b), plaintiff had notice service was not valid. Estate of Norris v. Hastings, 36 K.A.2d 479, 484, 141 P.3d 511 (2006).

59. Grimmett factors should not be rigidly applied to defeat service purportedly made by party or application of subsection (b). Estate of Norris v. Hastings, 36 K.A.2d 479, 484, 487, 141 P.3d 511 (dissenting opinion, Knudson, Jr.) (2006).

60. Suit filed before statute of limitations ran naming yet-to-be-appointed administrator as defendant allowed subject matter jurisdiction. Vorhees v. Baltazar, 283 K. 389, 397, 153 P.3d 1227 (2007).

61. Cited; the unique circumstances doctrine not applicable; counsel made untrue representations. Finley v. Estate of DeGrazio, 285 K. 202, 170 P.3d 407 (2007).

62. An action is commenced when petition is filed and service is made. Underhill v. Thompson, 37 K.A.2d 870, 880, 158 P.3d 987 (2007).

63. Defendant failed to file K.S.A. 60-1507 action, instead files appeal of order in criminal case; appeal dismissed. Hickson v. State, 39 K.A.2d 678, 680, 182 P.3d 1269 (2008).

64. Cited; service of summons required for court's jurisdiction over defendant. Wallace v. Microsoft Credit Corp., 563 F.Supp.2d 1197, 1201-1203 (2008).

65. Cited; contract action commenced on date hospital served, not date filed where complaint not served within 90 days. U.S. ex rel. Conner v. Salina Regional Health, 543 F.3d 1211, 1225 (2008).

66. Timely Arizona case dismissed but not on merits, K.S.A. 60-518 allows refiling in Kansas within six months. Campbell v. Hubbard, 41 K.A.2d 1, 201 P.3d 702 (2009).

67. Court holds that 30-day extension was not based upon good cause shown. Le v. Joslin, 41 K.A.2d 280, 202 P.3d 677 (2009).

68. Trial court found plaintiff failed to establish good cause for extension of time; unique circumstance doctrine discussed. Board of Sedgwick County Comm'rs v. City of Park City, 41 K.A.2d 646, 204 P.3d 648 (2009).

69. An inmate challenging an action of the secretary of corrections must file a habeas petition within 30 days of the secretary's action and there is no jurisdiction requirement that the inmate serve the petition on the secretary within 90 days. Sauls v. McKune, 44 K.A.2d 460, 238 P.3d 747 (2010).

70. Service requirement in K.S.A. 60-203 has no application to an inmate's filing of a habeas petition. Sauls v. McKune, 45 K.A.2d 915, 260 P.3d 95 (2011).

71. Savings provision only applies if the original service of process purports to have been made on the defendant. Fisher v. DeCarvalho, 45 K.A.2d 1133, 260 P.3d 1218 (2011).

72. Leaving summons and petition with the receptionist at defendant's assisted living residential community does not constitute substantial compliance with the statutory requirements for personal or residential service of process. Kuhn v. Schmidt, 47 K.A.2d 241, 277 P.3d 1141 (2012).

73. The cause of action may be saved if service of process is adjudicated to be defective for any reason under the facts of the case. Fisher v. DeCarvalho, 298 K. 482, 314 P.3d 214 (2013).

74. Plaintiff cannot use statute to prevent the statute of limitations from running when the wrong party is identified in the petition. Hajda v. Univ. of Kan. Hosp. Auth., 51 K.A.2d 761, 775, 356 P.3d 1 (2015).