Coffman v. Brandhoefer

• Decision Date: 21 October 1891
• Citation: 50 N.W. 6,33 Neb. 279
• Parties: COFFMAN v. BRANDHOEFER.
• Court: Nebraska Supreme Court

33 Neb. 279

50 N.W. 6

COFFMAN

v.BRANDHOEFER.

Supreme Court of Nebraska.

Oct. 21, 1891.

Syllabus by the Court.

1. An action is considered commenced, so far as the right to issue a writ of attachment is concerned, as soon as the petition is filed in the proper court, and a summons is issued thereon with a bona fide intent that it shall be served.

2. A suit for the recovery of money, when the defendant is a resident of the state, must be brought in the county where the defendant resides, or in the county where he temporarily is. Such action cannot be instituted in a county in which the defendant does not reside before he enters the county.

3. The filing of a motion to quash an attachment for want of jurisdiction over the person of the defendant and to issue the writ does not constitute a general appearance in the action.

Error to district court, Douglas county; JOSEPH R. CLARKSON, Judge.

Action by Samuel J. Coffman against L. A. Brandhoefer on a promissory note and an attachment issued. On motion by defendant the action was dismissed for want of jurisdiction. Plaintiff brings error. Affirmed.Chas. Offutt, for plaintiff in error, as to the effect of an appearance to dissolve the attachment, cited Porter v. Railroad Co., 1 Neb. 15; Cropsey v. Wiggenhorn, 3 Neb. 116; Crowell v. Galloway, Id. 220; Aultman & Taylor Co. v. Steinan, 8 Neb. 111.

Schomp & Corson, for defendant in error.

NORVAL, J.

This suit was commenced on the 3d day of April, 1890, in the county court of Douglas county, by the plaintiff in error upon a promissory note signed by the defendant. At the same time an affidavit for attachment and garnishment was filed, and a summons, writ of attachment, and garnishee summons were issued, returnable May 5, 1890. The grounds for attachment were (1) that the defendant was about to remove his property, or a part thereof, out of the jurisdiction of the court, with intent to defraud his creditors; (2) that the defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; (3) that the defendant has property and rights in action which he conceals; (4) that the defendant has assigned, removed, or disposed of, and is about to dispose of, his property, or a part thereof, with the intent to defraud his creditors; (5) that the defendant fraudulently contracted the debt on which the action is about to be brought. On April 25th the summons was returned not served, the defendant not being found in the county. On April 7, 1890, the defendant filed the following motion: “Comes now the defendant, by his attorney, and makes this appearance specially, and for the sole purpose of objecting to the jurisdiction of this court, and respectfully represents that this court has no jurisdiction of this defendant, and no means of obtaining jurisdiction, and therefore no basis or authority for issuing an attachment against this defendant. Wherefore, defendant asks that said attachment be withdrawn and declared void. J. G. WATTS, Attorney for Defendant.” The motion was accompanied by several affidavits showing that the defendant then was, and had been since 1885, a resident of Keith county, Neb., and was not in Douglas county on the 3d day of April, 1890, when the action was brought, and had not been there since January 27, 1890. There was also undisputed proof that an action was brought in the district court of Keith county on March 6, 1890, upon the same note sued on in this action, and said suit is still pending. There were presented on the hearing of the motion the affidavits of the plaintiff, Coffman, and Mr. Offutt, his attorney, to the effect that at the time the summons was issued they had information that the defendant was en route to the county of Douglas from Keith county; that the summons was issued with a bona fide intention to have it served on the day it was issued, or before the return-day thereof, and that the defendant was every few weeks in Douglas county, and plaintiff believes he will soon have an opportunity of having the summons served on the defendant in said county. On April 25, 1890, said motion was sustained, and the county court of its own accord dismissed the cause for want of jurisdiction. On a petition in error to the district court the judgment of the county court was affirmed. This ruling is now assigned for error.

It is urged by counsel for defendant in error that the county court was without authority or jurisdiction to issue the writ of attachment. In determining this question, it is important to notice the provisions of our statute on the subject. In chapter 20 of the Compiled Statutes, relating to county courts, we find this provision: “Sec. 16. Orders for arrest and for attachments of property may issue in actions under this chapter, but when the demand in such action exceeds the jurisdiction of a justice of the peace the proceedings upon such orders shall be the same, as near as may be, as in actions brought in the district court. The return-day of such orders shall, when issued at the commencement of the action, be the same as that of the summons; when issued afterwards, they shall be made returnable forthwith.” Section 198 of the Civil Code provides that “the plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated,” etc. Section 203 provides “that the return-day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it is issued.” Within the meaning of these provisions, at what...