Baker v. Union Stock Yards National Bank

• Decision Date: 06 February 1902
• Docket Number: 10,139
• Citation: 89 N.W. 269,63 Neb. 801
• Parties: J. K. BAKER v. UNION STOCK YARDS NATIONAL BANK
• Court: Nebraska Supreme Court

89 N.W. 269

63 Neb. 801

J. K. BAKER v. UNION STOCK YARDS NATIONAL BANK

No. 10,139

Supreme Court of Nebraska

February 6, 1902

ERROR from the district court for Douglas county. Tried below before POWELL, J. Affirmed.

AFFIRMED.

Hall & McCulloch, for plaintiff in error.

Kennedy & Learned, contra.

POUND C. SEDGWICK and OLDHAM, CC. concur.

OPINION

POUND, C.

The Union Stock Yards National Bank of South Omaha sued Baker and one Frazier upon a note made by Baker to Frazier, and by the latter indorsed and delivered to the bank. Service was had upon Frazier by leaving a copy at his usual place of residence in Douglas county and an alias summons issued thereupon to Buffalo county and was served upon Baker. The latter appeared and answered to the merits, and afterwards, by amended answer, set up as a further defense that the court had acquired no jurisdiction of his codefendant, Frazier, for the reason that the latter was a resident of Illinois, and had no residence in Douglas county at the time of the service of summons. At the trial the court directed a verdict for the bank, and the judgment rendered thereon has come before us on error.

A succession of well-considered cases has settled the law in this state as to the proper practice where want of jurisdiction over the person of a defendant is asserted. If a defendant claims that the court has acquired no jurisdiction over his person, by reason of defects or irregularities in the process, or service thereof, his course is by special appearance and objections to the jurisdiction; and if he goes further, and enters a general appearance, or invokes the powers of the court for any other purpose than quashing the pretended process, or service thereof, the defects are waived. Omaha Loan & Trust Co. Savings Bank v Knight, 50 Neb. 342, 69 N.W. 933; Ley v Pilger, 59 Neb. 561, 81 N.W. 507. But where, for some reason, the defendant is privileged from suit in the county where or at the time when he is sued, he may set up want of jurisdiction by answer, along with any other defenses he may have. Hurlburt v. Palmer, 39 Neb. 158, 57 N.W. 1019; Anheuser-Busch Brewing Ass'n v. Peterson, 41 Neb. 897, 60 N.W. 373; Herbert v. Wortendyke, 49 Neb. 182, 68 N.W. 350; Barry v. Wachosky, 57 Neb. 534, 535, 77 N.W. 1080; Goldstein v. Fred Krug Brewing Co. 62 Neb. 728, 87 N.W. 958. While in several of these cases the defendant first made a special appearance and objections to the court's jurisdiction over him, and, after these were overruled, set up the defense in his answer, we do not think such course is required in cases of this character. No special appearance or preliminary objections were made in Hurlburt v. Palmer, supra, or Herbert v. Wortendyke, supra, and the provisions of sections 94 and 96 of the Code of Civil Procedure, taken together, would seem to make it clear that they were not required. See also Kyd v. Exchange Bank of Cortland, 56 Neb. 557, 76 N.W. 1058. If such a defense is waived if not set up in the answer, it follows that the defense is not waived when set up by answer, and therefore that it is not waived by any preliminary steps required before raising it in the prescribed way. That such is the proper construction of the Code, is apparent upon consideration of the practice prior to the Code, and a comparison with the holdings of other courts. Reinstadler v. Reeves, 33 F. 308; Ward v. George, 1 Bush [Ky.] 357; Wabash W. R. Co. v. Brow, 164 U.S. 271, 41 L.Ed. 431, 17 S.Ct. 126; National Accident Society v. Spiro, 164 U.S. 281, 41 L.Ed. 435, 17 S.Ct. 996. But while the defense set up in the amended answer was one that might properly be raised by answer in conjunction with other defenses, and while no preliminary objections were necessary to enable it to be so raised, we think it is the duty of a defendant in such cases to plead the want of jurisdiction as soon as called upon to answer. If he answers without so doing, we think he can not afterwards make the defense in an amended answer. Section 96, Code of Civil Procedure, provides that, if the objection is not taken by answer, "the defendant shall be deemed to have waived the same." Answering without taking this objection, then, was a waiver, and a waiver of such an objection must operate once for all. Having waived the objection, and by his answer acquiesced in the suit in a county other than that where he was amenable to service of process, he could not raise it at any subsequent stage of the proceedings.

As the court directed a verdict for the bank, we must take Baker's version of the transaction in question as the measure of his liability. His claim, in substance, is that he, with Frazier and one McPherson, cashier of the bank entered into an arrangement for buying, feeding and shipping cattle, whereby Baker was to furnish one-half of the moneys required, and Frazier and McPherson the other half; that in order to raise their share of the money Frazier and McPherson borrowed it of the bank upon a note signed "J. K. Baker & Co." by...