Barry v. Wachosky

CourtSupreme Court of Nebraska
Citation77 N.W. 1080,57 Neb. 534
Decision Date19 January 1899
PartiesBARRY ET AL. v. WACHOSKY.

57 Neb. 534
77 N.W. 1080

BARRY ET AL.
v.
WACHOSKY.

Supreme Court of Nebraska.

Jan. 19, 1899.



Syllabus by the Court.

1. Where a defendant objects specially to the court's jurisdiction over him, and, that being overruled, pleads generally to the merits, and interposes as a defense in his answer the facts showing the court's want of jurisdiction, he does not thereby waive the objection that the court had no jurisdiction over him.

2. The test for determining whether an action is rightly brought in one county against the defendant found and served therein, so that others made defendants thereto may be served in a foreign county, is whether the defendant served in the county in which the action is brought is a bona fide defendant to that action,--whether his interest in the action and the result thereof are adverse to that of the plaintiff.

3. A nonnegotiable promissory note is a mere chose in action; as such it is assignable, and the assignee thereof may maintain an action thereon in his own name.

4. To such a suit the assignor is not a necessary party. Section 30, Code Civ. Proc.

5. The payee of a nonnegotiable note, who writes his name across the back thereof, and sells and delivers the note, does not thereby render himself liable on such note to the holder thereof.

6. Such a payee of such a note may render himself liable to his assignee for the payment of such note by writing a contract to that effect over his signature; but such a contract, if made, would be a separate and independent one from that evidenced by the note, and the makers of the note would not be liable on that contract.

7. To a suit by the assignee of such a note thereon, the original payee is not a proper party. To a suit by such assignee on the payee's contract to be liable for the payment of the note, the makers thereof are not proper parties.

8. Two causes of action on two separate contracts cannot be united in one petition, unless each cause of action affects all parties made defendants.


Error to district court, Douglas county; Slabaugh, Judge.

Action by Michael Wachosky against James M. Barry and others. Judgment for plaintiff. Defendants bring error. Reversed.

[77 N.W. 1080]

Mel C. Jay, Alfred Pizey, and Jay & Welty, for plaintiffs in error.

Geo. E. Pritchett, for defendant in error.


RAGAN, C.

J. M. Barry, J. M. Brannan, and C. D. Ryan made their promissory note for $500, and delivered the same to one D. F. Clarke. The note was payable to Clarke only. It was nonnegotiable. Before the note matured, Clarke seems to have sold it to Michael Wachosky. At any rate, he wrote his name across the back of the note, and over that he recited in writing that he guarantied the payment of the note and delivered it to Wachosky. The latter, in the county court of Douglas county, brought a suit against Clarke, Barry, Brannan, and Ryan, and set out in his petition the execution and delivery of the note by the makers thereof to Clarke, and then that Clarke wrote his name on the back of the note, and wrote over his name his contract guarantying the payment of the note, and delivered it to him (Wachosky). Clarke resided and was summoned in Douglas county. The makers of the note were found and summoned in Dakota county. The makers of the note, on being brought into the county court, appeared specially, and objected to the jurisdiction of the court over them upon the grounds that they were found and summoned in Dakota county, where they resided,...

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39 practice notes
  • State Securities Co. v. Federated Mut. Imp. & Hard. Ins. Co., Civ. No. 30-L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • September 13, 1960
    ...R.S.1943, Reissue of 1956; Archer v. Musick, 147 Neb. 344, 23 N.W.2d 323; Crum v. Stanley, 55 Neb. 351, 75 N.W. 851; Barry v. Wachosky, 57 Neb. 534, 77 N.W. 1080. Or, if its status be that of one for whose benefit a contract has been made between two other parties, it is itself the real par......
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...Nebraska Nat. Bank v. Parsons, 115 Neb. 770, 215 N. W. 102;First State Bank v. Ingrum, 107 Neb. 468, 186 N. W. 334;Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080;Farmers' & Merchants' Bank v. Tate, 96 Neb. 142, 147 N. W. 213;Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349. In Ayres ......
  • Fireman's Fund Ins. Co. v. Cole, 30912
    • United States
    • Mississippi Supreme Court
    • February 26, 1934
    ...517; Cook v. Pitts, 114 Miss. 39, 74 So. 777; Goodpaster v. C. M. & G. R. Co., 240 Ill.App. 267; 1 C. J. 44, par. 36; Barry v. Wachosky, 77 N.W. 1080; Equitable Mortgage Co. v. Weddington, 21 S.W. 576. The common law rule is well established that when a plea of the venue is filed at the pro......
  • Archer v. Musick, No. 32067.
    • United States
    • Supreme Court of Nebraska
    • June 7, 1946
    ...This statute has been construed from the viewpoint of misjoinder of causes of action against several defendants. See Barry v. Wachosky, 57 Neb. 534, 77 N.W. 1080;School District v. De Long, 80 Neb. 667, 114 N.W. 934;Raapke & Katz Co. v. Schmoller & Mueller Piano Co., 82 Neb. 716, 118 N.W. 6......
  • Request a trial to view additional results
39 cases
  • State Securities Co. v. Federated Mut. Imp. & Hard. Ins. Co., Civ. No. 30-L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • September 13, 1960
    ...R.S.1943, Reissue of 1956; Archer v. Musick, 147 Neb. 344, 23 N.W.2d 323; Crum v. Stanley, 55 Neb. 351, 75 N.W. 851; Barry v. Wachosky, 57 Neb. 534, 77 N.W. 1080. Or, if its status be that of one for whose benefit a contract has been made between two other parties, it is itself the real par......
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...Nebraska Nat. Bank v. Parsons, 115 Neb. 770, 215 N. W. 102;First State Bank v. Ingrum, 107 Neb. 468, 186 N. W. 334;Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080;Farmers' & Merchants' Bank v. Tate, 96 Neb. 142, 147 N. W. 213;Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349. In Ayres ......
  • Fireman's Fund Ins. Co. v. Cole, 30912
    • United States
    • Mississippi Supreme Court
    • February 26, 1934
    ...517; Cook v. Pitts, 114 Miss. 39, 74 So. 777; Goodpaster v. C. M. & G. R. Co., 240 Ill.App. 267; 1 C. J. 44, par. 36; Barry v. Wachosky, 77 N.W. 1080; Equitable Mortgage Co. v. Weddington, 21 S.W. 576. The common law rule is well established that when a plea of the venue is filed at the pro......
  • Archer v. Musick, No. 32067.
    • United States
    • Supreme Court of Nebraska
    • June 7, 1946
    ...This statute has been construed from the viewpoint of misjoinder of causes of action against several defendants. See Barry v. Wachosky, 57 Neb. 534, 77 N.W. 1080;School District v. De Long, 80 Neb. 667, 114 N.W. 934;Raapke & Katz Co. v. Schmoller & Mueller Piano Co., 82 Neb. 716, 118 N.W. 6......
  • Request a trial to view additional results

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