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Dillon Companies, Inc. v. Davis

April 18, 2008

DILLON COMPANIES, INC., D/B/A DILLON'S # 55 APPELLEE,
v.
MARVIN DAVIS, A/K/A MARVIN B. DAVIS, JR., APPELLANT.



Appeal from Sedgwick District Court; KARL W. FRIEDEL, judge.

SYLLABUS BY THE COURT

1. The facts set forth in a sheriff's return of service are presumed to be accurate. The presumption may be rebutted by other evidence.

2 Kansas prison inmates may receive "incentive pay" for work performed while in custody. Upon payment, the money is kept for the inmate in a prison account. Once that money has been placed into an account for the prisoner, it is subject to garnishment through a non-wage garnishment.

Per curiam.

Affirmed.

Before McANANY, P.J., ELLIOTT and LEBEN, JJ.

Marvin Davis wrote a bad check for $50 at a Dillon's grocery store in Wichita, and Dillon Companies, Inc. obtained a judgment against him in 1991 for $405. The judgment was left fully unpaid until 2004, when Dillon's successfully garnished $123.28 from Davis' accounts at the El Dorado Correctional Facility, where Davis is an inmate.

Davis challenges both the garnishment and the original judgment against him. He argues that he was not properly served with the petition in 1991 and that the garnishment wrongly took $51.75 of his wages--called "incentive pay" in the correctional facility--with a "non-wage" garnishment. But Davis fails to offer any actual evidence that he wasn't properly served, and ordinary wages lose their status as earnings when they are deposited into a bank account. A bank account is not functionally different when its equivalent is provided to an inmate through a correctional-facility savings account. As such, we affirm the judgment of the district court.

Davis Has Not Shown that the Original 1991 Judgment Against Him Was Based on Improper Service

Davis' appeal of the original entry of judgment in 1991 rests on his claim that he was never properly served with a summons and petition. Proper service of process is one of the prerequisites to a court exercising jurisdiction over a party. Board of Johnson County Comm'rs v. Greenhaw, 241 Kan. 119, 130, 734 P.2d 1125 (1987). A judgment entered without proper service is void, Medina v. American Family Mut. Ins. Co., 29 Kan. App. 2d 805, 809, 32 P.3d 205 (2001), rev. denied 273 Kan. 1036 (2002), and a void judgment may be set aside at any time. In re Adoption of J.H.G., 254 Kan. 780, 791, 869 P.2d 640 (1994).

The district court found that service was proper. The court file contains a return of service by a Sedgwick County deputy sheriff stating that the summons and petition were left "at the usual place of residence of the defendant," 1747 N. Volutsia in Wichita, and that a notice of the delivery was also mailed first-class to that address. If that was in fact Davis' usual place of residence at that time, the service complied with K.S.A. 60-303(d)(1), which allows service by posting at a defendant's residence accompanied by a notice mailed first-class.

Davis contends that he lived with two roommates on Webb Street in December 1991, not at 1747 N. Volutsia; he also says he was arrested sometime that month and spent the rest of it in jail. But his allegations are not accompanied by an affidavit or any documentation showing where he was residing in December 1991. The sheriff's return said that 1747 N. Volutsia was his usual place of residence, and it has long been presumed in Kansas law that a sheriff's return is accurate. See Supply Co. v. Whan, 111 Kan. 687, 688, 208 Pac. 563 (1922); Ingraham v. McGraw, 3 Kan. 521, 522 (1866); Stunkle v. Holland, 4 Kan. App. 478, 481, 46 Pac. 416 (1896). Although this is a rebuttable presumption, Davis did not offer anything of evidentiary value to do so.

The district court held a telephone conference hearing at which Davis was heard on this issue. No transcript or record of that conference was provided on appeal. An appellant has the duty to designate a record sufficient to establish the error claimed. Without such a record, the claim fails. City of Mission Hills v. Sexton, 284 Kan. 414, 435, 160 P.3d 812 (2007). Even if no transcript was made, our appellate rules allow a party to include a record of it. See Kansas Supreme Court Rules 3.04 (2007 Kan. Ct. R. Annot. 25).

We find nothing of evidentiary value in the record to rebut the statement in the sheriff's return that Davis' usual place of residence was 1747 N. Volutsia in December 1991. Davis has attempted to do so with an attachment to his brief that purports to show that he did not receive a letter sent to the Volutsia address by restricted mail at some point. The materials are not self-explanatory; one copy of the envelope seems to bear a date of September 1991, while the other seems to bear a postmark from 2005. Even if Davis had mail sent restricted to the Volutsia address in September 1991 and that mail was returned "unclaimed," as the exhibit suggests, that would only prove that no one went to the post office to claim the envelope. It certainly does not prove where Davis resided in December 1991. In any event, documents attached to a brief but not otherwise found in the record on appeal may not be ...


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