Cobbey v. Wright

• Decision Date: 01 April 1890
• Citation: 45 N.W. 460,29 Neb. 274
• Parties: COBBEY v. WRIGHT.
• Court: Nebraska Supreme Court

29 Neb. 274

45 N.W. 460

COBBEY

v.WRIGHT.

Supreme Court of Nebraska.

April 1, 1890.

Syllabus by the Court.

1. An action to enjoin a judgment rendered in Gage county was brought in Lancaster county against the sheriff of Lancaster county and the plaintiff in the judgment, a resident of Gage county, and on the trial the action as to the sheriff was dismissed, and a decree by default rendered against the plaintiff in the judgment. The injunction was afterwards dissolved by the supreme court, and the action dismissed. Afterwards, upon a further showing that the judgment complained of was a lien upon certain real estate of the plaintiffs in Lancaster county, and thereby created a cloud thereon, the judgment of dismissal was modified upon payment of costs so as to permit an amended petition to be filed setting forth the facts as to the alleged lien. An amended petition was thereupon filed, in which there is no allegation or claim that the judgment in question is a lien upon any specific estate of the plaintiff. Held, that the court had no jurisdiction, and that the decree for the plaintiff therein is a nullity.

2. Except in cases where jurisdiction is acquired by reason of the subject-matter of the suit, an action must be brought against a defendant in the county in which he or some of the defendants reside or may be summoned.

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

N. C. Abbott, for defendant in error.

MAXWELL, J.

This is an action to enjoin a judgment. The petition is as follows: “Now comes the said plaintiff and files this, his amended petition herein, in accordance with the order of the supreme court of this state, and, complaining of the said defendant, says that the said defendant, Joseph E. Cobbey, Sr., has, or claims to have, a judgment against one Edward Hutchinson, rendered in the justice court in and for Gage county, Neb., on the 31st day of July, 1886, for the sum of $45 and costs of suit therein taxed. That afterwards, and on or about the 10th day of August, 1886, said defendant, plaintiff in said action against said Hutchinson, filed in said justice court an affidavit in garnishment against this plaintiff, and caused a summons in garnishment to issue against this plaintiff out of said justice court in said action. That afterwards, and on or about the 21st day of August, 1886, the justice before whom said case was pending, unlawfully and without any notice to this plaintiff, and without his knowledge or consent, made a finding that this plaintiff was indebted to the said Edward Hutchinson in the sum of $100, and thereon made the following order: ‘It is therefore ordered, considered, and adjudged by the court that said John B. Wright or his agent pay to the said plaintiff, out of the money now in or coming into his hands belonging to said Hutchinson, $53 debt and costs, forthwith, and plaintiff, Cobbey, have judgment against the said John B. Wright for $53 and costs, and execution therefor. T. E. FERRIER, Justice of the Peace.’ That no summons or notice in garnishment was ever served on him in any manner whatever, nor did he ever, in person or by counsel, appear in any proceedings in said case, or the garnishment proceedings therein, or know anything about any such order or judgment, or pretended judgment, until about the 29th day of October, 1886. That he does not owe said Hutchinson or defendant any sum of money whatever, nor did he ever owe either of them any sum of money whatever, nor did he ever own or hold any contract by which he did, or ever had any reason to, expect that he would become indebted to said Hutchinson in any sum of money whatever, nor did he have any property of any kind whatever in his possession or under his control belonging to the said Hutchinson. That afterwards, and on or about the______ day of October, 1886, the said defendant caused a certified transcript of said proceedings and order or judgment to be filed in and...