Davis v. Ballard
| Decision Date | 04 January 1894 |
| Docket Number | 5431 |
| Citation | 57 N.W. 527,38 Neb. 830 |
| Parties | SOPHIA W. DAVIS v. JOHN G. BALLARD ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HALL, J.
REVERSED AND REMANDED.
Talbot & Bryan, for plaintiff in error:
All civil actions in Nebraska other than proceedings in attachment are commenced with the issuance of the writ of summons which is served on the defendant. The filing of the petition is not the commencement of the action, and although a petition may remain on file before the time of the issuance of an alias summons, yet in law the action must be considered as commenced at the issuance of the summons which is actually served upon the defendant. (Cropsey v. Wiggenhorn, 3 Neb. 116; Baker v. Sloss, 13 Neb. 231; Gage County v. Fulton, 16 Neb. 5.)
It is immaterial when the petition was filed. If it is said that the petition must be refiled at the time of the issuance of each summons, then the court must conclude that the issuance of an alias summons is in law equivalent to the formal matter of refiling the petition. The jurisdiction of the court over the person is obtained by the service of process. (Wells Jurisdiction, sec. 83; Johnson v. Jones, 2 Neb. 136; Smelt v. Knapp, 16 Neb. 54; Frazier v Miles, 10 Neb. 113; Aultman v. Cole, 16 Neb. 5.)
Leese & Stewart, contra, cited: Coffman v. Brandhoeffer, 33 Neb. 279; Carlisle v. Corran, 2 S.W. [Tenn.], 26.
On the 10th day of September, 1891, Sophia W. Davis filed her petition in the district court of Lancaster county against John G. Ballard, Caleb Strickler, the First State Bank of Bertrand, and James A. Ruby, sheriff, to recover damages for a wrongful attachment of property alleged to belong to plaintiff, but to have been seized upon a writ directed against a third person, it being alleged that Ruby as sheriff, levied the attachment; that Ballard, as plaintiff, directed the levy, and that the other defendants rendered aid and assistance in the act. Upon the same day a summons was issued, which, upon September 23, was returned non est inventus. Upon the 1st day of March, 1892, an alias summons was issued which, upon March 3, was returned as having been served upon Ballard March 2; the other defendants not found. Ballard entered a special appearance and objected to the jurisdiction of the court, first, because none of the defendants was present in Lancaster county at the time of the commencement of the action; second, because the petition was filed September 10, 1891, and permitted to remain on file until March 1, 1892, when the alias summons was issued; third, because the action was not commenced in the county in which any of the defendants reside or could be summoned. These objections were sustained and the action dismissed for want of jurisdiction.
The evidence was in the form of affidavits, which are preserved in the bill of exceptions. The affidavit of John G. Davis is to the effect that Ballard was in Lancaster county on the 10th of September, when the petition was filed and the original summons issued, and that he remained in that county a few days thereafter, but evaded service; also, that upon March 1, 1892, Ballard was in the county before the alias summons was issued and at the time of its issuance. Ballard's affidavit is that upon September 10, 1891, and for several years prior thereto, he was a resident of Phelps county, and has ever since resided in that county; that the other defendants are all residents of Phelps county; "that none of the defendants have ever been in Lancaster county since the 10th day of September, 1891, and for a a long time prior thereto, except this affiant, who was temporarily present in Lancaster county on March 1, 1892." There was no evidence outside of these two affidavits.
Davis' affidavit is positive in its averment that Ballard was in Lancaster county upon September 10, when the petition was filed and original summons issued. Ballard's affidavit is equivocal and does not deny this. It is true that he says that none of the defendants have been in Lancaster county since the 10th day of September and for a long time prior thereto, but his language seems to be carefully studied so as not to assert that none were in the county upon the 10th day of September, and the words "except this affiant" seem also to be inserted in the place they occupy for the purpose of still further guarding this point. It...
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