Persinger v. Tinkel

• Decision Date: 17 February 1892
• Citation: 51 N.W. 299,34 Neb. 5
• Parties: PERSINGER v. TINKEL.
• Court: Nebraska Supreme Court

34 Neb. 5

51 N.W. 299

PERSINGER

v.TINKEL.

Supreme Court of Nebraska.

Feb. 17, 1892.

Syllabus by the Court.

The decision of the district court sustaining the defendant's motion to quash the service of summons made upon him is not such a final order as can be reviewed by the supreme court on error until a final judgment is rendered.

Error to district court, Platte county; POST, Judge.

Action by Persinger against Tinkel. Objection by defendant to the jurisdiction was sustained, and plaintiff brings error. Petition in error dismissed.Lee & Thompson and Sullivan & Reeder,for plaintiff in error.

M. Whitmoyer and I. L. Albert, for defendant in error.

NORVAL, J.

This action was brought in the court below by the plaintiff in error to recover the sum of $1,604, and interest, as damages for the wrongful conversion by the defendant of a quantity of dry goods. A summons, in regular form, was issued by the clerk of the district court, which contained the indorsement of the amount for which plaintiff would take judgment if the defendant failed to appear. The writ was placed in the hands of the sheriff, who returned that he served the same by delivering to the defendant personally a copy thereof, with all the indorsements thereon. Subsequently the defendant appeared specially for the purpose of challenging the jurisdiction of the court to render judgment against him for any sum, for the reason that the copy of the summons served upon and delivered to the defendant contained no indorsement of the amount for which plaintiff asked judgment. Before the court ruled upon the defendant's challenge to the jurisdiction, the plaintiff, upon his own behalf, as well as on behalf of the sheriff, moved the court for leave to the sheriff to amend the copy of the summons served upon the defendant, by making the indorsements thereon conform to the indorsements on the original summons, which motion was overruled, and an exception taken. The objections to the jurisdiction of the court were sustained, and the service of the summons quashed. Two errors are assigned: (1) In denying the motion of the plaintiff for leave to the sheriff to amend the copy of the summons left with the defendant; (2) in sustaining the challenge to the jurisdiction. It is claimed by the defendant in error that, in the absence of a final judgment in the case, the orders complained of cannot be reviewed on error, because they are not final. We think the position is well taken. The statute has conferred jurisdiction upon the supreme court to review by proceeding in error a judgment rendered or final order made by the district court. Code, § 582. By section 581 of Civil Code a final order is defined to be “an order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary...