Chi., B. & Q. R. Co. v. Manning

• Decision Date: 08 March 1888
• Citation: 23 Neb. 552,37 N.W. 462
• Parties: CHICAGO, B. & Q. R. CO. v. MANNING ET AL.
• Court: Nebraska Supreme Court

23 Neb. 552

37 N.W. 462

CHICAGO, B. & Q. R. CO.

v.MANNING ET AL.

Supreme Court of Nebraska.

March 8, 1888.

Syllabus by the Court.

Under section 912 of the Civil Code a summons against a corporation may be served upon its chief officer, if he be found in the county. If not so found, then upon its cashier, treasurer, secretary, clerk, or managing agent; or if none of these can be found, by copy left at the office or usual place of business of such corporation, with the person having charge thereof. This, as well as section 914, applies to foreign corporations, except where there are special provisions to the contrary.

Where it is sought to enjoin a judgment upon the ground that the plaintiff has a defense to the action, and it would be inequitable and unjust to enforce the judgment, the facts constituting the alleged defense must be pleaded, and it is not sufficient to merely allege that plaintiff had such a defense.

Upon the facts proved, held, that the loss was not occasioned by the act of God, and that the plaintiff was liable for the loss.

Appeal from district court, Douglas county; WAKELEY, Judge.

Action brought by the Chicago, Burlington & Quincy Railroad Company, appellant, against Joseph P. Manning and others, appellees, to enjoin a judgment rendered by default against the appellant in a suit in which Parrish & Barker were plaintiffs and the railroad company defendant. The action was dismissed, and the plaintiff appeals.Howard B. Smith, for appellant.

C. H. Brown, C. A. Baldwin, and J. J. O'Connor, for appellees.

MAXWELL, J.

This action was brought by the plaintiff against the defendants to enjoin a certain judgment. Plaintiff alleges in its petition “that it is a corporation, duly organized and doing business under the laws of the state of Illinois. That the defendant Joseph P. Manning is a constable, duly qualified in and for the county of Douglas and state of Nebraska, and that the defendants Francis M. Barker and Henry M. Parrish were, at the times hereinafter mentioned partners, doing business as Parrish & Barker. That on or about the 10th day of December, 1881, the said Henry M. Parrish and Francis M. Barker, partners as aforesaid, commenced an action before Luther Wright, Esq., a justice of the peace in and for said county and state, to recover the sum of $122.50, and interest, alleged to be due said defendants from said plaintiff for failure to deliver safely certain goods described in the bill of particulars filed therein. That on said day said justice issued a summons thereon, which said summons was returned not served. That thereupon, upon the 21st day of December, 1881, said justice issued an alias summons, and delivered the same to said constable, J. P. Manning. That said summons commanded the said plaintiff herein, the Chicago, Burlington & Quincy Railroad Company, the defendant therein, to appear before said justice of the peace at his office in the city of Omaha on the 31st day of January, A. D. 1881, at 9 o'clock in the forenoon. That on the 24th day of December, 1881, the said summons was returned by said constable, J. P. Manning, indorsed as follows, to-wit: ‘DECEMBER 21, 1881. Received this writ December 23, 1881. Served by delivering a certified copy of this writ and indorsements thereon to W. J. Davenport, general managing agent of the Chicago, Burlington & Quincy Railroad, the defendant, in Douglas county, Nebraska, no other officer being found.’ That thereupon, upon the 31st day of December, 1881, the said summons was by the said justice quashed and a third summons issued, returnable January 9, 1882, at 9 o'clock A. M., which said summons was delivered to said constable, J. P. Manning, and was returned indorsed as follows, to-wit: ‘DECEMBER 31, 1881. Received this writ January 3, 1882. Served by delivering a certified copy of this writ and indorsementsthereon at the office or usual place of business of said corporation, (with Harry Duel, the person having charge thereof,) the defendant, no officer being found in Douglas county, Nebraska. J. P. MANNING. Fees, 85c.’ That said summons was further indorsed as follows, to-wit: ‘Filed 31st day of December, 1881. LUTHER A. WRIGHT, Justice of the Peace.’ That thereupon, upon said 9th day of January, 1882, the said justice of the peace rendered judgment by default against the said Chicago, Burlington & Quincy Railroad Company for $125.50, damages, and $2.70, costs of suit. That afterwards, to-wit, on the 23d day of January, 1882, the said justice issued an execution upon said judgment and delivered the same to the defendant J. P. Manning, constable, wherein and whereby the said constable was commanded to collect said judgment, with costs indorsed, and increase costs out of the personal property of the said plaintiff herein, and to pay the same to the defendants Parrish and Barker. That afterwards, to-wit, upon the 31st day of January, 1882, the said Chicago, Burlington & Quincy Railroad Company, by its attorney, appeared at the office of the said justice, between the hours of 9 and 10 A. M., as commanded in the alias summons aforesaid, and learned for the first time that judgment had been rendered against it as aforesaid. And plaintiff further says that it is a foreign corporation, and is not a corporation within and under the laws of the state of Nebraska; that its railroad terminates at Council Bluffs, Iowa; that the office mentioned in the return of service, indorsed by said constable on the summons issued December 31, 1881, was not at that time, has not been, and...