Bowen v. Sch. Dist. No. 3, Phelps Cnty.

• Decision Date: 18 March 1880
• Citation: 10 Neb. 265,4 N.W. 981
• Parties: BOWEN AND OTHERS v. SCHOOL DISTRICT NO. 3, PHELPS COUNTY.
• Court: Nebraska Supreme Court

10 Neb. 265

4 N.W. 981

BOWEN AND OTHERS

v.SCHOOL DISTRICT NO. 3, PHELPS COUNTY.

Supreme Court of Nebraska.

Filed March 18, 1880.

Error from Adams county.

Bowen & Laird, for plaintiffs.

Harwood & Ames, for defendant.

MAXWELL, C. J.

In March, 1876, school district No. 3 of Phelps county commenced an action against the plaintiffs in error in the county court of Buffalo county, by filing the following petition, and causing a summons to issue thereon:

“ School District No. 3 of Phelps County, Nebraska, Plaintiff, v. A. H. Bowen and James Laird, Defendants.

“On this twenty-eighth day of March, 1876, plaintiff, by Henry V. Hoagland, the director of said school district, filed their bill of particulars, duly verified as follows: School district No. 3 of Phelps county, Nebraska, plaintiff, complains of A. H. Bowen and James Laird, defendants, for that the said defendants are indebted to said plaintiff in the sum of $102.10, together with interest thereon from the first day of September, A. D. 1874, for and on account of school district bonds numbered one, two and three, of said school district No. 3, heretofore sold and delivered to said defendants at their special instance and request, which sum remains wholly unpaid, wherefore plaintiff asks judgment,” etc.

The summons was returned as having been served upon Laird, the return stating that Bowen was not found in Buffalo county. The alias summons was thereupon issued to the sheriff of Adams county, and returned, served upon Bowen in that county. It appears from the record that on the first of May, 1876, “by request of defendant, plaintiffs' attorneys agreeing thereto, this cause is set for trial on the twenty-fifth day of May, 1876.” At the time agreed upon for the trial the record shows the following entry: “May 25, 1876, by request of defendants, and plaintiffs' counsel consenting thereto, this cause is adjourned to the eighth day of June, 1876, at 10 o'clock A. M.” At the time to which the cause was adjourned, the plaintiffs in error failed to appear, and judgment was rendered against them for the sum of $119.96. The case was taken, on error, to the district court, where the judgment of the court below was affirmed. The cause is brought into this court by petition in error.

The first error assigned is, that the county court had no authority to issue an alias summons to Adams county for service upon Bowen therein.

Section 23 of the “act concerning the organization, powers and jurisdiction of probate courts,” approved March 3, 1873, provides that “all writs and other process, except subpœnas, may be executed and served as the case may require in any county of the state; and if it be a county other than that of the residence of the probate judge, the same shall be directed to the sheriff of such other county.” Section 25 provides that the provisions of sections 22, 23 and 24 shall not apply to civil and criminal actions prosecuted before the probate court, thus restricting the provisions of section 23 to business in the probate courts other than civil or criminal actions. There was no authority, therefore, to issue a summons to Adams county, nor to serve the same upon Bowen therein, and without an appearance the court would have obtained no jurisdiction over him. The appearance of the defendants, however, remedies that defect. Section 25 has since been repealed, (Laws of 1877, p. 16.) The second assignment of error is, in substance, that the court erred in holding that Hoagland, the director of the...