Chicago, Burlington & Quincy Railroad Company v. County of Hitchcock

• Decision Date: 08 November 1900
• Docket Number: 9,226
• Citation: 84 N.W. 97,60 Neb. 722
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLEE, v. COUNTY OF HITCHCOCK ET AL. APPELLANTS
• Court: Nebraska Supreme Court

84 N.W. 97

60 Neb. 722

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLEE, v. COUNTY OF HITCHCOCK ET AL. APPELLANTS

No. 9,226

Supreme Court of Nebraska

November 8, 1900

APPEAL from the district court of Hitchcock county. Heard below before NORRIS, J. Affirmed.

AFFIRMED.

L. H Blackledge, for appellants.

E. R Duffie, Charles F. Manderson, J. E. Kelby, F. M. Flansburg R. O. Adams and W. S. Morlan, contra.

OPINION

HOLCOMB, J.

By injunction the plaintiff and appellee seeks to restrain the collection of taxes to the amount of 110 mills on the dollar valuation attempted to be levied for the satisfaction of certain purported judgments rendered against the village of Trenton, one of the appellees. On the trial of the case in the court below it was found that all the judgments save one, were void for want of jurisdiction in the court rendering them, and a decree entered enjoining perpetually the collection of nine-tenths of the special taxes so attempted to be levied. From this decree the action is by appeal brought here for further consideration.

The appellants the Shickle, Harrison & Howard Iron Company and the county of Hitchcock, present a joint brief, arguing for a reversal of the judgment below. A joint brief is also filed on behalf of the appellee railway company and the village of Trenton. No other appearances are made in the appeal proceedings. The jurisdiction of the court rendering the judgment in favor of appellant the Shickle, Harrison & Howard Company, who are the largest of the village creditors, depends upon the following instrument filed in the case in that court, no other appearance of any kind being found in the record. The paper referred to is as follows, omitting the title: "Comes now the defendant, the village of Trenton, and by its officers, the chairman of its board of village trustees, and its attorney they being duly authorized by order of record of the village board, hereby waives the issuance and service of summons in the above entitled cause, and enters the voluntary appearance of said defendant herein and also waives the giving of security for costs in this action by the plaintiff.

"Dated this 21st day of January, 1895.

"[SEAL.] H. B. SEELEY,

"Chairman of the Board of Village Trustees of the Village of Trenton, Defendant.

"Attest: A. L. TAYLOR,

"Village Clerk.

F. M. FLANSBURG,

Village Attorney."

A petition had been filed January 5, and the so-called appearance was filed the 23d of the same month. At the May term of the court following, judgment was rendered against the village as by default. The claims against the village appear to have been for material used for the construction of a waterworks system, for which bonds had been voted by the taxpayers in the sum of $ 5,000. The expenses incurred in the construction of the system, however, seem to have greatly exceeded the proceeds derived from the bonds, and the judgments referred to were obtained, and for their satisfaction, resort was had to the special levy mentioned.

The controlling question presented is whether the court acquired jurisdiction over the village by the filing of the instrument heretofore copied. The question is one by no means free from doubt. Ordinarily, a defendant may waive the issuance and service of summons, and enter a voluntary appearance in a case, such appearance being equivalent to actual service of summons in the manner provided by statute. Code of Civil Procedure, sec. 72; Merchants Savings Bank v. Noll, 50 Neb. 615, 70 N.W. 247. Whether or not a municipal corporation, whose officers derive their powers solely from the statute, may make such an appearance as is contemplated by the section referred to, and waive the issuance and service of summons, is not necessarily involved in this action, and need not therefore be considered. The proposition herein to be determined is as to the authority of an attorney and chairman of the board of trustees of a village to waive the issuance and service of summons in an action against the village in the manner hereinbefore mentioned, and thereby give to the court jurisdiction to render a valid and binding judgment against such village. That an attorney can not, without authority therefor, make such an appearance, we regard as the law of this state and well supported by authority. Ellis v. Ellis, 13 Neb. 91, 13 N.W. 29; Starr v. Hall, 87 N.C. 381; Atchison, T. & S. F. R. Co. v. Benton, 42 Kan. 698, 22 P. 698; Bridgeport Savings Bank v. Eldredge, 28 Conn. 556.

It is urged, however, that the chairman of the board of trustees being the person upon whom service of summons is required to be had, may properly waive its issuance, and enter a voluntary appearance for the corporation in an action against it. There is certainly no direct authority for such action, nor does it appear to us to be based on any well recognized rule of construction to hold that such authority is lodged in a presiding officer of a municipal corporation as an implied power, under the different sections of the statute bearing on the subject. By section 56, chapter 14, article 1, Compiled Statutes, 1899, cities of the second class and villages, as therein defined, shall be bodies corporate and politic, and may sue and be sued. By section 57 it is provided that "the corporate name of each city or village governed by this chapter shall be the 'city (or village) of ,' and all and every process and notice whatever affecting such corporation, shall be served upon the mayor or chairman of board of trustees, and in his absence, upon the clerk, or in the absence of such officers, then by leaving a certified copy at the office of the clerk." The service contemplated in the foregoing section, which is to be made upon the chairman, or, in his absence, upon the clerk, or, in the absence of both, by leaving a copy...