Brown v. Rice

• Decision Date: 17 September 1890
• Citation: 30 Neb. 236,46 N.W. 489
• Parties: BROWN v. RICE ET UX.
• Court: Nebraska Supreme Court

30 Neb. 236

46 N.W. 489

BROWN

v.RICE ET UX.

Supreme Court of Nebraska.

Sept. 17, 1890.

Syllabus by the Court.

1. In an action under sections 51 and 77 of the Code of Civil Procedure, where service was by publication, and the plaintiff's affidavit omitted to state that the defendants, or some of them, resided out of the state, held, that it was competent for the defendant to appear specially in support of a motion challenging the jurisdiction of the court, or to quash a juridical paper, without further appearing as a defendant in the case. Porter v. Railroad Co., 1 Neb. 14;Cleghorn v. Waterman, 16 Neb. 226, 20 N. W. Rep. 636, 877.

2. A ruling of the court sustaining the defendant's motion to quash the service against him by publication, without a judgment of record, is not such a final order determining the plaintiff's rights of action as will be reviewed on error. Brown v. Edgerton, 14 Neb. 453, 16 N. W. Rep. 474.

Error to district court, Madison county; CRAWFORD, Judge.William V. Allen, for plaintiff in error.

Wigton & Whitham, for defendants in error.

COBB, C. J.

The plaintiff in error exhibited his petition in the district court of said county against the defendants, Rice and his wife, and Mary J. Brown, the petitioner's wife, setting up that on September 30, 1875, he purchased the W. 1/2 of the S. E. 1/4 of section 30, township 22, range 4 W. in said county for $400, the fee-simple title to which, “to pacify his wife,” was conveyed to her, in trust, for his use and benefit; that on April 16, 1878, she mortgaged the land to defendant Rice to secure her note of that date to him for $79 due in 60 days, bearing 12 per cent. interest; that on January 20, 1879, the mortgage was foreclosed against her in said court, and the land sold to the mortgagee and judgment creditor, and sheriff's deed made to him, June 7, 1889, and that he had since paid taxes thereon of $58.42. The plantiff seeks to redeem the land of the mortgage, interest, and costs, and the subsequent taxes, and to quiet his title. Mesne process was not served on the parties, but on November 25, 1885, the plaintiff's attorney filed his affidavit for service by publication, stating “that service of the summons in this case cannot be made within the state on the said defendants, or either of them, and that this is one of the cases mentioned in section 77 of the Code of Civil Procedure.” Accordingly, it was ordered “that service upon the defendants be made by publication in the manner required by law.” Notice to the defendants by publication was given, dated November 25, 1885, and proof of publication, in the Madison Chronicle, a weekly newspaper printed and published in said county, and of general circulation therein, for four consecutive weeks, was made March 9, 1886, and on the same day default was taken and entered in open court against the defendants. On March 25th, and subsequently, on November 28, 1887, the defendants being still in default, it was ordered that the petition be taken as confessed; that the sale of the land to defendant Rice, and the sheriff's deed to him, be set aside and canceled; that the petitioner's to title the land be restored and quieted, and he be permitted to redeem the same from the foreclosure and sale; and for that purpose a referee was appointed to ascertain what mortgage and tax-liens existed against the land, from which the plaintiff should be required to redeem, and the case was continued for further hearing on the referee's report. On October 8, 1888, the defendant Rice appeared, by his attorneys, specially, for the purposes of his motion only, and moved to quash the service by publication on him for the reasons-- First, that the affidavit for service by publication is not sufficient in law to authorize such service, in that it fails to state that this defendant is, or was at...