Bair v. People's Bank

• Decision Date: 04 October 1889
• Citation: 27 Neb. 577,43 N.W. 347
• Parties: BAIR ET AL. v. PEOPLE'S BANK.
• Court: Nebraska Supreme Court

27 Neb. 577

43 N.W. 347

BAIR ET AL.

v.PEOPLE'S BANK.

Supreme Court of Nebraska.

Oct. 4, 1889.

Syllabus by the Court.

1. An action was brought by the “People's Bank” against the makers of a promissory note, and personal service had on the same, and judgment rendered by default. Afterwards the makers of the note took the case on error to the district court, where the judgment was affirmed. Held, that while the name of “People's Bank” would not of itself show the legal capacity of the plaintiff, yet if the note was given to the bank by that name the makers could not deny its right to bring suit thereon; and, as error must affirmatively appear, and the record showing that a note was introduced in evidence, it must be presumed to have been given to the bank by that name.

2. In an action brought in a county court on a promissory note to recover less than $200, where one or more of the defendants is properly summoned in that county, the judge has authority to issue a summons to other counties of the state to bring in other joint or joint and several obligors. Quœre, whether, under section 1085 of the Code, this power may not be exercised by justices of the peace.

Error from district court, Gage county; BROADY, Judge.Maule & Sloan, for plaintiffs in error.

R. W. Sabin, for defendant in error.

MAXWELL, J.

This action was brought by the defendant in error against the plaintiffs in error and O. C. Sabin, in the county court of Gage county, and judgment rendered in favor of the defendant in error. The case was then taken on error to the district court, where the judgment was affirmed. The record of the trial before the county judge is as follows: “The People's Bank v. Samuel Bair, Eleanor Bair, and O. C. Sabin. April 10, 1888. Plaintiff files bill of particulars, claiming judgment against defendants in the sum of $100.00 and interest at 10 per cent. from November 11, 1886, as money due and unpaid on a certain promissory note. Summons issued to the sheriff of Fillmore Co., Neb., returnable April 21, 1888, at 10 o'clock A. M. April 17, 1888. Summons returned indorsed: ‘Served by delivering to and leaving with the said Samuel Bair and Eleanor Bair a true and certified copy of this writ, with all the indorsements thereon. Fees, $2.95. W. J. CARSON, Sheriff of Fillmore Co., Nebr.’ Paid by People's Bank. April 21, 1888. It appearing to the court that no service of summons has been made on defendant Sabin, this case continued until April 30, 1888, at 10 o'clock A. M. April 23, 1888, comes the above-named O. C. Sabin, and enters voluntary appearance herein. April 30, 1888, cause continued until May 17, 1888, 9 o'clock A. M., on application of plaintiff's attorney. May 17, 1888, 9 o'clock A. M., plaintiff by attorney in court. Defendants come not, but make default. Default of defendants taken. After waiting one hour, and defendants still failing to appear, plaintiff demands trial. Trial proceeds. Note sued on offered in evidence, and the court, being duly advised in the premises, finds there is due the plaintiff from the defendants or either of them the sum of $115.15 on said note, as found due. It is therefore considered by the court that plaintiff recover from said defendants, or either of them, the sum of $115.15 debt, and costs of suit, taxed at $6.00. O. M. ENLOW, County Judge.”

Two questions are presented by the record: First, had the bank legal capacity to sue? and, second, as to the authority of the county judge to issue a summons to be served on some of the defendants in another county.

1. Section 24 of the Code provides that “any...