Cheney v. Harding

• Decision Date: 06 January 1887
• Parties: CHENEY v. HARDING AND OTHERS.
• Court: Nebraska Supreme Court

21 Neb. 65

31 N.W. 255

CHENEY

v.HARDING AND OTHERS.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

An acknowledgment of the service of a summons, in writing, on the back of such summons, signed by a person to be served, held to be equivalent to actual legal service of such summons by the sheriff to whom the same is directed, made within his proper bailiwick.

Appeal from district court, Otoe county.

Action by holder of second mortgage to recover land sold under first mortgage.E. F. Warren, for plaintiff in error.

Frank T. Ransom and John C. Watson, for defendants in error.

COBB, J.

This was an action brought by the plaintiff, Prentiss D. Cheney, to recover certain lands in Otoe county, upon which he is the holder of a second mortgage, from a sale pursuant to a judgment of foreclosure rendered in an action brought by the holders of a first mortgage upon the same lands, and in which action the plaintiff was a defendant. The judgment of the district court was for the defendants, dismissing the action, and the cause is brought to this court by the plaintiff by appeal. He assigns the following errors: “ First. The court below erred in holding that Cheney's admission of service made in Illinois was equivalent to an acceptance of service made within the jurisdiction of the court. Second. The court erred in holding that the decree in Mutual Life Ins. Co. v. B. L. Harding and others was a foreclosure against Cheney's rights. Third. The court erred in admitting in evidence the tax deed from the treasurer of Otoe county to H. H. Gray. Fourth. The court erred in finding for the defendants. Fifth. The judgment for the defendants is contrary to law. Sixth. The court below violated and disregarded the rights guarantied to appellant by the constitution of the United States, in this: The privileges and immunities enjoyed by citizens of Nebraska, and enforced by the supreme court of the state, were denied to this appellant, who is a citizen of the state of Illinois; the court denied to appellant the equal protection of the laws; the court deprived the appellant of his property without due process of law.”

The principal question involved in the case is presented by the first assignment of errors. Did the district court of Otoe county, in the case of Mutual Life Ins. Co. v. B. L. Harding and others, acquire and have jurisdiction to render the judgment which it did in fact render in said cause, in so far as said judgment affected the rights of the present plaintiff, one of the defendants in said cause? Our statute (section 72, Code Civil Proc.) provides that “an acknowledgment on the back of the summons, or the voluntary appearance of a defendant, is equivalent to a service.” It appears from the abstract that, upon the trial of the cause, after the introduction in evidence of other parts of the record in the case of Mutual Life Ins. Co. v. B. L. Harding and others, plaintiff introduced a summons, (part of said record.) I quote from the abstract: “In this summons the sheriff is commanded to summon P. D. Cheney, impleaded with B. L. Harding and others; and it is returned and filed September 3, 1877, and shows the following: ‘I admit service of written summons this twenty-ninth day of August, 1877, at my residence in Jerseyville, Illinois. P. D. CHENEY.’ ”

It is not shown either by the abstract or the transcript itself whether the above admission is written on “the back of the summons,” so as to bring it strictly within the language of the statute, or upon some other...