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READ v. MILLER

March 16, 1990.

LAURA E. READ, Appellee,
v.
THERESA A. MILLER, Appellant.



The defendant, Theresa A. Miller, filed a motion to dismiss the auto negligence action filed by Laura E. Read based upon the statute of limitations. The trial court denied the motion and certified its order for interlocutory appeal. We granted permission to appeal and hold that plaintiffs action is time-barred. We therefore reverse and remand with directions to dismiss plaintiffs action.

The facts are not in dispute. Plaintiff Laura Read and defendant Theresa Miller were involved in an automobile accident in Leavenworth County on September 20, 1986. Exactly two years later, on the day the statute of limitations expired (K.S.A. 1989 Supp. 60-513[a] [4]), plaintiff filed her action in Wyandotte County.

[14 Kan. App. 2d 275]

     

The summons for defendant which listed defendant's address as "Rural Route 2 Box 61 V, Bonner Springs, Kansas," was returned on September 21, 1988, marked "No Service" with a typed notation at the bottom, "need a street address for service in Wyandotte County." A second summons was issued September 29, 1988, with added address instructions: "West on 32 Highway from Bonner Springs Stop Light approximately 5 miles to gravel road. Go south approximately 1 1/2 miles, House on left side of road, name on mailbox."

  The second summons was returned on October 3, 1988, marked "No Service" with a typed notation: "unable to serve at above address, per Bonner Spring Fire Dept it is located in Tanglewood, which is in LEAVENWORTH COUNTY, KANSAS."

  On January 13, 1989, 115 days after filing her action, plaintiff obtained a third summons which was successfully served by the sheriff of Leavenworth County on January 17, 1989. The next day, plaintiff filed a motion for enlargement of time to serve defendant, stating in part:
"2. The plaintiff believed defendant resided in Wyandotte County, Kansas. However, it has been determined that the defendant resides in Leavenworth County, Kansas.
"3. An Alias Summons has been issued to the Sheriff of Leavenworth County, Kansas."
That same day, Judge Zukel signed the following order:
"The Court, being well and fully advised in the premises, finds that for good cause shown the plaintiffs Motion should be granted. The time for obtaining service of process is enlarged for a period of thirty (30) days."
  The question presented is when plaintiff's action was commenced. We believe that the answer to this question depends upon the proper construction of K.S.A. 60-203(a).

  The trial court held, however, that the extension could be granted independently of K.S.A. 60-203(a) under the provisions of K.S.A. 1989 Supp. 60-206(b)(2). We first consider whether the trial court's application of K.S.A. 1989 Supp. 60-206(b)(2) was correct.

  Application of K.S.A. 1989 Supp. 60-206(b)

  K.S.A. 1989 Supp. 60-206(b)(2) provides:

  "When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the

[14 Kan. App. 2d 276]

      judge for cause shown may at any time in the judge's discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect."

  Defendant argues that this statute does not apply because the specific language in K.S.A. 60-203(a) controls over the general language in K.S.A. 1989 Supp. 60-206(b)(2). Defendant's point is well taken. Our Supreme Court has held:
"It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls." Szoboszlay v. Glessner, 233 Kan. 475, 479, 664 P.2d 1327 (1983).
  We applied this rule to a similar question in Stanton v. KCC, 2 Kan. App. 2d 228, 577 P.2d 367, rev. denied 225 Kan. 845 (1978). The appellants filed a notice of appeal out of time along with an application to the trial court for an extension of time based on excusable neglect. The trial court granted permission to file the appeal out of time. 2 Kan. App. 2d at 229. This court dismissed, explaining:
 
"Unless legislative intent appears otherwise, a special statute which relates to particular persons or things will take precedence over a statute dealing with a subject in general. [Citations omitted.] K.S.A. 60-206 . . . is a statute of general application, whereas K.S.A. 60-2103 . . . is a statute dealing specifically with appellate procedure. Although subsection (b) of the former does provide for the enlargement of time for an act to be done where the failure to act was the result of excusable neglect, the latter permits an extension of time in which to take an appeal only upon a showing of excusable neglect based on failure of a party to learn of the entry of judgment. There is nothing in the record or elsewhere to our knowledge to indicate anything but that the legislature intended the specific provisions of K.S.A. 60-2103 to take precedence. We conclude that, in the absence of an affirmative showing that failure to file the notice of appeal within the prescribed thirty-day period was because of failure to learn of the entry of judgment, the district court was without authority to grant the ...

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