Calkins v. Miller

• Decision Date: 23 June 1898
• Citation: 75 N.W. 1108,55 Neb. 601
• Parties: CALKINS v. MILLER ET AL.
• Court: Nebraska Supreme Court

55 Neb. 601

75 N.W. 1108

CALKINS

v.MILLER ET AL.

Supreme Court of Nebraska.

June 23, 1898.

Syllabus by the Court.

1. Service by publication is irregular, and should be quashed on motion, when the published notice requires the party to answer on or before the second, instead of the third, Monday after the fourth publication of the notice.

2. The published notice takes the place of a summons, and must inform the defendant on what date he is required to answer; and he must be required to answer on the date fixed by the Code. The statute is mandatory. Neither the courts nor the clerks of the court are invested with any discretion with respect to the time which a notice by publication shall be published, what it shall contain, nor on what date the defendant shall be notified that he is required to answer.

3. An action to foreclose a mechanic's lien must be commenced within two years after the filing of a claim for lien in the office of the register of deeds.

4. Such an action is commenced at the date of the summons which is served upon the defendant.

Appeal from district court, Knox county; Robinson, Judge.

Suit by L. C. Calkins against H. N. Miller and others to foreclose a lien. Suit was dismissed as to some of the defendants for insufficient service. The defendants who were personally served demurred to the petition. Demurrer was sustained, and plaintiff appeals. Affirmed.A. A. Welch, for appellant.

Barnes & Tyler and Carter & Brown, for appellees.

RAGAN, C.

On the 28th of October, 1892, L. C. Calkins filed with the register of deeds of Knox county a verified account of items of material which he alleged he had furnished one H. N. Miller in pursuance of an oral contract with him for the erection of an improvement upon the latter's real estate, and claimed a lien upon said real estate for the material so furnished. On the 16th of October, 1894, Calkins filed a petition in the district court of said Knox county against Miller and a number of others, the object of which was to have established and foreclosed a lien upon the real estate of Miller for the material furnished to him for the erection of said improvement. At the date of filing this petition Calkins filed with the clerk a præcipe for a summons for all the parties made defendants. The clerk neglected to issue a summons as requested until the 30th of October, 1894, on which date be issued a summons, which was personally served on Miller and another. On the 15th of October, 1894, Calkins filed an affidavit for constructive service upon a number of parties made defendants to the action brought against Miller. On the 18th of October, 1894, he caused a notice of the pendency of this suit to be first published, which notice fixed the answer day of the parties attempted to be constructively summoned for the second Monday in November, 1894, to wit, November 19th, instead of the third Monday, to wit, November 26, 1894, as required by the statute. The parties upon whom Calkins attempted to obtain constructive service appeared specially, and moved the court to quash the constructive service or the service by publication, because the answer day was fixed by the notice published for the second instead of the third Monday after the service by publication was complete. This motion the court sustained. After the service of summons upon him, Miller died, and the action was revived in the name of his administratrix. She and the other party personally served with the summons answered the action of Calkins, and pleaded as a defense thereto that his action accrued more than two years prior to the date of the summons which was served upon them. To this answer Calkins replied, alleging the filing of his petition on the 16th of October, 1894, the filing of the præcipe for a summons, and that the fact that the summons which was personally...