White v. German Insurance Co.

• Decision Date: 29 May 1884
• Citation: 20 N.W. 30,15 Neb. 660
• Parties: JOHN E. WHITE ET AL., PLAINTIFFS IN ERROR, v. THE GERMAN INSURANCE CO., DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 30

15 Neb. 660

JOHN E. WHITE ET AL., PLAINTIFFS IN ERROR, v. THE GERMAN INSURANCE CO., DEFENDANT IN ERROR

Supreme Court of Nebraska

May 29, 1884

ERROR to the district court for Kearney county. Tried below before GASLIN, J.

AFFIRMED.

Joel Hull, for plaintiff in error.

W. W Wood, for defendant in error.

OPINION

MAXWELL, J.

On the 24th of June, 1882, the defendant in error commenced an action against the plaintiffs in the county court of Kearney county upon a promissory note to recover the sum of $ 12.50. Summons was thereupon issued returnable on the 29th of that month. The return is as follows: "Received this summons 26th day of June, 1882, and I hereby certify that on the same day I served the same on the within named John E. White by delivering to him a true and certified copy of the summons, and on the within named R. W. White by leaving a certified copy at his usual place of residence." On the return day of the summons, the following motion was filed: "John E. White makes special appearance for himself, and by his attorney, and objects to the jurisdiction of the court for want of service, and states that the officer served the summons in this action upon him personally by handing him a copy at about 2 o'clock P.M. on the 26th day of June, 1882." The justice overruled the objection and rendered judgment in favor of the defendant in error, which judgment was affirmed by the district court.

The errors assigned in this court are in substance that the court below had no jurisdiction. A motion should specifically point out the very objection made. Courts do not look with favor upon technical motions or pleas, and if such are overruled, it must appear that the party complaining has sustained injury thereby. The objection made in this case undoubtedly was intended to apply to the time of service of summons.

Sec. 911 of the code provides that "the summons must be returnable not more than twelve days from its date, and must, unless accompanied by an order of arrest, be served at least three days before the time of appearance, etc.

Sec 895 provides that "the time within which an act is to be done as herein provided shall be computed by excluding the first day and including the last," etc. This is not a new question in this state. The justice code has been in force about twenty-five years, and the almost invariable practice under it has been to make the summons returnable on the...