Cobbey v. Wright

• Decision Date: 25 January 1888
• Citation: 23 Neb. 250,36 N.W. 505
• Parties: COBBEY v. WRIGHT.
• Court: Nebraska Supreme Court

23 Neb. 250

36 N.W. 505

COBBEY

v.WRIGHT.

Supreme Court of Nebraska.

January 25, 1888.

Syllabus by the Court.

In a personal action against two defendants, a summons was served on one in the county where the action was pending, and another summons was issued therein to the sheriff of another and different county, and served on the other defendant in such other county, of which other county he was an inhabitant, and before a general appearance of the party served, as last aforesaid, in the action, the plaintiff voluntarily dismissed the case as to the defendant served in the county where said cause was pending. Held, that the court thereby lost jurisdiction of the other defendant.

A defendant in an action not legally served with process, but against whom a judgment by default had been entered, may appear specially, and pray the court to set aside such judgment of default, and, upon such default being opened, enter a plea in abatement to the jurisdiction of the court, without being held to have made a general appearance in the action.

Error to district court, Lancaster county; POUND, Judge.J. E. Cobbey, for plaintiff in error.

N. C. Abbott, for defendant in error.

COBB, J.

This cause was brought in the district court of Lancaster county by John B. Wright against J. E. Cobbey and Samuel Melick, defendants. The object of the action was to enjoin Cobbey, as the owner of a judgment rendered in his favor by a justice of the peace of Gage county against said Wright and one Hutchinson, a transcript of which had been filed in the office of the clerk of the district court of Lancaster county, from holding said judgment as a lien upon the property of the plaintiff, or of levying an execution issued thereon upon his said property, and enjoining the said Melick from levying such execution, as sheriff of said county of Lancaster. A summons was issued and served on the defendant Melick in Lancaster county. Another summons was issued against Cobbey to the sheriff of Gage county, of which he is and was an inhabitant. A temporary order of injunction was issued. The defendant Melick appeared and demurred to the petition. The defendant Cobbey did not appear at the term of court at which the summons against him was returnable, whereupon he was called, accordding to law and the practice of said court, and, failing to answer or appear, his default was regularly entered; and thereupon it was ordered by the said court that the allegations of the plaintiff's petition were taken and confessed to be true as against him, the said Cobbey; and thereupon, on motion of the plaintiff, said action was dismissed as to the defendant Samuel M. Melick, sheriff, etc. Afterwards, on the seventeenth day of December, 1886, the said cause came on to be heard upon the motion of the defendant J. E. Cobbey, Sr., to set aside the default theretofore entered of record against him on the fifteenth day of December, 1886, and it was ordered by the court that the said motion be sustained, and the said default was thereupon set aside, vacated, and held for naught, and leave given to the said defendant J. E. Cobbey, Sr., to answer in said action, etc. Thereupon the said defendant J. E. Cobbey, Sr., appearing for the sole purpose of said motion, objected to the jurisdiction of said court to further proceed in the said action, or to require him to further plead in the said action, and said that the said court had no jurisdiction over the subject-matter of this controversy or over the person of the said defendant, as shown by affidavit thereto attached. On the twenty-first day of March, 1887, the said court, upon consideration thereof, overruled the said plea, and on the twenty-fifth day of said month the said cause again came on for a hearing, and the defendant being in default of an answer, and failing to appear or answer when called according to the practice of said court, the court again found that the allegations of the plaintiff's petition are true and confessed by the defendant J. E. Cobbey, Sr.; and thereupon said cause came on for a trial to said court, without the intervention of a jury; and thereupon the said court rendered a final judgment for the said plaintiff, and that the said injunction be made perpetual.

The defendant brings the cause to this court on error. He assigns several causes, but one of which it is deemed necessary to examine, to-wit, that the court erred in assuming jurisdiction over the person of the said defendant, or over the subject-matter of the controversy. The defendant in error moved in this court to strike from the files the affidavit of the plaintiff in error, filed in the court below, showing himself to be a resident of Gage, and not of Lancaster, county, and that the summons in said action was served on him in the former and not in the latter county, for the reason that said affidavit was not preserved by a bill of exceptions. This motion must be sustained, it having been settled, by a long line of cases in this court, that any testimony or instrument of evidence used or offered at a trial, or in the course of a judicial proceeding, and which does not belong to the record proper, in order to be available in this court, must be preserved in a bill of exceptions. See Tessier v. Crowley, 16 Neb. 369, 20 N. W. Rep. 264, and cases there cited; Bradshaw v. State, 17 Neb. 147, 22 N. W. Rep. 361;Graves v. Scoville, 17 Neb. 593, 24 N. W. Rep. 222, and later cases. At the same time it must be observed that the affidavit referred to was not necessary for the purpose of raising the question of the jurisdiction of the district court over the person of the plaintiff in error and the subject-matter of the suit.

It appears from the record that the only service made or had upon the defendant was made in the county of Gage, and by the sheriff of that county. Had the suit been brought against Cobbey alone, it will not be...