Davis v. Jennings
| Decision Date | 07 March 1907 |
| Citation | 78 Neb. 462,111 N.W. 128 |
| Parties | DAVIS ET AL. v. JENNINGS ET AL. |
| Court | Nebraska Supreme Court |
When the plaintiff in an action shall be ignorant of the names of the defendant or defendants, he may designate them in his petition and summons by such names as he supposes they possess, if in verifying his petition he shall state that he could not discover their true names.
The fact that the defendants are designated in the summons by such supposed names, although it amounts to a misnomer, affords no ground for quashing the writ or the service thereof.
A defendant in such case may object, by a motion in the nature of a plea in abatement, to being designated by any other than his true name, and, when such objection is made, the court should require the pleading and process to be amended by inserting the true name of the defendant therein.
Where the service of summons is erroneously quashed, and the cause dismissed without prejudice for want of service, such order is a final judgment and appealable.
Appeal from District Court, Holt County; Westover, Judge.
Action by Sarah E. Davis and others against Christ Jennings and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.R. R. Dickson, C. A. Robinson, and H. M. Sinclair, for appellants.
L. C. Chapman and M. F. Harrington, for appellees.
Sarah E. Davis and others filed their petition (verified according to the provisions of section 148 of the Annotated Code of 1901) in the district court of Holt county, to foreclose a certain real estate mortgage, and designated the defendants therein as “Christ Jennings” and his wife, “Mrs. Christ Jennings” (first and real name unknown). The summons issued on this petition commanded the sheriff to notify Christ Jennings and Mrs. Christ Jennings (first full and real name unknown) that they had been sued by the plaintiffs (naming them). In making service on the defendant Christ Jennings, the sheriff delivered to him what purported be a copy of the summons, but which was not an exact copy, for the reason there was a clerical mistake in the names of some of the plaintiffs. Both defendants appeared specially for the purpose of objecting to the jurisdiction of the court. Christ's objection was based on two grounds: “First, that the copy of the summons delivered to him was not an exact copy of the summons issued in the case; second, that his true name was Christian Jennings, and that he had not been sued by his true name.” His wife's objection was based on the sole ground that her real name is “Louise Jennings,” and that she had not been sued by that name. Affidavits in support of the special appearances, which were by motion, were filed, as well as affidavits in opposition thereto. The court sustained the special appearances. The plaintiff elected to stand on the service as made. The court thereafter quashed the service, dismissed the case without prejudice, and the plaintiff appealed.
The affidavits used at the hearing on the motions are presented by a bill of exceptions, from which it conclusively appears, that the defendants are husband and wife; that the defendant designated by the name of Christ Jennings is, and for years past has been, better known by that name than by the name of Christian Jennings, which he claims to be his true name; and that he owns land under a deed in which he is thus named as grantee. As to the alleged misnomer of the other defendant, she is described in the writ as the wife of her codefendant, and is designated by the name by which he is commonly known, with the title of “Mrs.” prefixed; and so it may be said that this mistake in the names of the defendants amounts to a misnomer. This furnished no ground for quashing the service and dismissing the plaintiff's action. It has been held that an objection to the name by which the plaintiff designates himself cannot be raised as an objection to the jurisdiction of the court (Smelt v. Knapp, 16 Neb. 54, 20 N. W. 20), and this rule necessarily applies with equal force where there is a mistake in the defendant's name (Kronski v. Mo. Pac. R. R. Co., 77 Mo....
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Solomon v. Continental Baking Co
...3 How. 332, 34 Am. Dec. 96; Jacobs v. New York Life Ins. Co., 71 Miss. 656; Feed Milling Co. v. Warren County, 159 Miss. 167; Davis v. Jennings, 111 N.W. 128. E. Smith and Pat D. Holcomb, both of Clarksdale, for appellant. The lower court erred in overruling plaintiff's motion to strike the......
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Solomon v. Continental Baking Co.
... ... 332, 34 Am ... Dec. 96; Jacobs v. New York Life Ins. Co., 71 Miss. 656; Feed ... Milling Co. v. Warren County, 159 Miss. 167; Davis v ... Jennings, 111 N.W. 128. E. W. Smith and Pat D. Holcomb, both ... of Clarksdale, for appellant ... The ... lower court erred in ... ...
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Yarbrough v. Pugh
...though he be erroneously named in the process. Counsel cite the following: Orman v. Salvo, 117 F. 233, 54 C. C. A. 265; Davis v. Jennings, 78 Neb. 462, 111 N.W. 128; Nisbet v. Clio Mining Co., 2 Cal. App. 436, 83 1077; Lafayette Ins. Co. v. French, 59 U.S. 404, 15 L.Ed. 451; Foshier v. Narv......
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De Lair v. De Lair
... ... See ... Britton v. Larson, 23 Neb. 806, 37 N.W. 681; Barker Co. v ... Central West Investment Co., 75 Neb. 43, 105 N.W. 985; Davis ... v. Jennings, 78 Neb. 462, 111 N.W. 128; Keil v. Farmers ... Irrigation District, 119 Neb. 503, 229 N.W. 898 ... When the ... ...