Bucklin v. Strickler

• Decision Date: 02 July 1891
• Citation: 32 Neb. 602,49 N.W. 371
• Parties: BUCKLIN ET AL. v. STRICKLER.
• Court: Nebraska Supreme Court

32 Neb. 602

49 N.W. 371

BUCKLIN ET AL.

v.STRICKLER.

Supreme Court of Nebraska.

July 2, 1891.

Syllabus by the Court.

1. Service of summons set forth in the record held to be sufficient to confer jurisdiction.

2. Technical objections to the service of a summons must be specifically pointed out to justify the court in sustaining them.

3. A motion to quash a summons because of defects therein or in serving the same, should be confined to the defects complained of. If it go further, and pray for a dismissal of the case, it is a general appearance in the action, as it invokes the power of the court on a question other than that relating to jurisdiction.

Error to district court, Hamilton county; NORVAL, Judge.

Action for commissions by D. E. Bucklin and A. L. Kennedy against Conrad Strickler. Dismissed. Plaintiffs appeal. Reversed.E. J. Hainer and J. H. Smith, for plaintiffs in error.

Agee & Stevenson, for defendant in error.

MAXWELL, J.

This action was brought before a justice of the peace, who, on the motion of the defendant, dismissed the action for want of jurisdiction, the costs being taxed to the plaintiffs. The case was taken on error to the district court, where the judgment as to costs was reversed, and the judgment of dismissal affirmed. The transcript of the justice is as follows: “ ‘State of Nebraska, Hamilton Co.--ss.: In justice court, before D. A. Scoville, justice of the peace in and for said county, January 3, 1888, plaintiffs filed the following bill of particulars: The plaintiffs complain of the defendant for that on or about the ______ day of Nov., 1887, plaintiffs sold a farm then owned by the defendant, in section 3, in township 10, of range 6 west, for the sum of $5,800.00, to one F. M. Howard, for which services said defendant agreed and promised to pay plaintiffs a commission of 2 1/2 on the dollar on amount said farm was sold for; and plaintiffs allege that said services so rendered were reasonably worth said amount. Wherefore plaintiffs ask judgment against said defendant for the sum of $145.00 and costs of this action. J. H. SMITH, Atty. for Plaintiffs.’ Summons issued of this date, returnable January 14, 1888, at 9 o'clock in the forenoon, and delivered to S. B. Gebhart, Constable. January 3, 1888, summons returned, indorsed as follows: ‘State of Nebraska, Hamilton Co.--ss.: Received this summons this 3d day of January, A. D. 1888. I hereby certify that on the 3d day of January, A. D. 1888, I served the within writ of summons on the within-named Conrad Strickler, by delivering to him in person a true and certified copy of the same, with all the indorsements thereon. Fees: Serving summons, $.50; copy, $.25; mileage, $.10; total, $.85. S. B. GEBHART, Constable.’ January 14, 1888, at 9 o'clock in the forenoon, this case was called. Plaintiff appeared in person and by counsel. Counsel for defendant appeared, and made oral motion to dismiss this case for want of proper service, and in support of said motion filed the following affidavit: ‘Before D. A. Scoville, a justice of the peace within and for Aurora precinct, Hamilton County, Neb. D. E. Bucklin, A. L. Kennedy v. Conrad Strickler. State of Nebraska, Hamilton Co.--ss.: Conrad Strickler, being first duly sworn, says he is the defendant in the above-entitled cause, and that the papers hereto attached, marked “Exhibit A,” and made a part hereof, was handed to him by S. B. Gebhart on the 3d day of January, 1888, and that the same is in the exact condition in which he received it, and that it is the only paper that has ever been delivered to him in the above-entitled cause, and that no paper has ever been delivered to him or left with him or offered to him, purporting to be a paper in the above-entitled cause, and that no other service of summons has been made on him in said cause. CONRAD STRICKLER. Subscribed in my presence, and sworn to before me, this 9th day of January, 1888. [Seal.] W. R. GRAYBILL, Notary Public.’ ‘State of Nebraska, Hamilton Co. To the sheriff or any constable of said county, greeting: You are hereby commanded to summon Conrad Strickler to appear before me, D. A. Scoville, a justice of the peace in and for said county, at my office in Aurora precinct in said county, on the 14th day of January, A. D. 1888, at 9 o'clock in the forenoon, to answer the...