Ayres v. West
| Decision Date | 10 March 1910 |
| Docket Number | No. 15,869.,15,869. |
| Parties | AYRES v. WEST, SHERIFF, ET AL. |
| Court | Nebraska Supreme Court |
AYRES
v.
WEST, SHERIFF, ET AL.
No. 15,869.
Supreme Court of Nebraska.
March 10, 1910.
A cause of action against the maker of a promissory note and a cause of action against a third person who has guaranteed that the bill shall be paid are not identical, nor do the contracts create a joint liability.
If an action for a money judgment is brought upon those contracts in the county where the maker of the note resides and summons is served upon him in that county, the court is without authority to issue an alias summons to a foreign county for the guarantor.
Where persons severally and not jointly liable on separate contracts have been collusively joined as defendants for the sole purpose of bringing suit for a money judgment against a defendant in a county wherein he does not reside, a summons sent to and served upon him in the county of his residence is void, and, if the record discloses those facts, collection of the judgment may be enjoined.
Appeal from District Court, Butler County; Corcoran, Judge.
Action by F. J. Ayres against I. J. West, sheriff, and another. Judgment for plaintiff, and the mentioned defendant appeals. Affirmed.
Norval Bros. and J. J. Thomas, for appellant.
R. C. Roper and Skiles & Harris, for appellee.
ROOT, J.
This action is prosecuted against the sheriff of Butler county to enjoin him from selling plaintiff's real estate on execution. Plaintiff prevailed, and defendant appeals.
Walter Jackson, prior to 1889, executed two promissory notes maturing July 1, 1889, payable to William Deering & Co. or order. A contract of guaranty signed by plaintiff appears on the back of each note as follows: “For value received I hereby guarantee that the indebtedness mentioned in the within note, with interest at the rate agreed upon will be paid by the maker thereof at maturity, and hereby consent that the time of payment thereof may be extended, or new note or security for the same debt taken, and this guarantee shall extend and apply thereto, hereby waiving protest, demand, and notice of nonpayment and necessity of suit against any party to this note, or any note taken in its place.” Ayres is credited with the payment of 50 cents June 13, 1894. June 2, 1898, Deering & Co. commenced an action in the county court of Hall county against Jackson and Ayres. In its petition plaintiff charged that the defendants made and delivered the notes. Copies of the bills and of the guaranty are attached to the petition and made a part thereof. A summons was issued to the sheriff of Hall county and served on Jackson. The sheriff in his return to the writ states that “F. J. Ayres not served on account of not being found in Hall county.” In June, 1898, Ayres was, and has continued to be, a resident of Butler county. June 21, 1898, a summons was issued to the sheriff of Butler county for Ayres, and served on him in that county. Ayres did not appear in the action, his default was entered on answer day, and judgment was rendered for the full amount of Deering & Co.'s claim. Prior to the entry of said default and judgment, Jackson had demurred to the petition because of a misjoinder of causes of action. The demurrer was submitted the day judgment was entered against Ayres, and thereafter sustained. Subsequently an amended petition was filed wherein Jackson was given credit for $25 not mentioned in the original petition. To this pleading Jackson demurred, his demurrer was overruled, and he answered. The transcript does not contain a copy of this pleading, but a statement is made that Jackson pleaded the statute of limitations. Deering & Co.'s attorney filed a stipulation to the effect that Jackson had withdrawn his demurrer, that he was a proper
[125 N.W. 584]
party to the action, and that other facts existed which demonstrate that the statute of limitations had barred a recovery against Jackson. The court made findings in conformity with the stipulation, but did not render judgment thereon.
1. Plaintiff contends that his joinder with Jackson in said suit was fraudulent and collusive; that the petition disclosed a several liability of the defendants on distinct and separate contracts; and that the court never acquired jurisdiction to render a judgment in that action against any one other than Jackson. Defendant asserts that the pleadings in the county court presented questions of fact and law which the judge necessarily determined when he...
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