Dunn v. Haines

• Decision Date: 12 May 1885
• Citation: 23 N.W. 501,17 Neb. 560
• Parties: L. E. DUNN ET AL., PLAINTIFFS IN ERROR, v. JOSEPH A. HAINES ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

23 N.W. 501

17 Neb. 560

L. E. DUNN ET AL., PLAINTIFFS IN ERROR, v. JOSEPH A. HAINES ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 12, 1885

ERROR to the district court for Douglas county. Tried below before WAKELEY, J.

AFFIRMED.

T. M Marquett, for plaintiffs in error.

Groff & Montgomery, for defendants in error.

OPINION

MAXWELL, J.

This action was brought in the county court of Douglas county upon a promissory note, of which the following is a copy:

"LINCOLN, NEB., Jan. 29, 1881.

"Ninety days after date, for value received, we promise to pay to the order of Haines Bros. & Co. four hundred dollars at Omaha,--maturity until paid.

"L E. DUNN,

"W. H. H. DUNN,

"T. M. MARQUETT."

Service was had upon Mr. Marquett in Douglas county, and upon the other defendants in Lancaster county. Marquett filed an answer to the petition, wherein he alleged that he was merely surety on the note and the other defendants principals, and that the time of payment of said note had been extended "from April 29th, 1881, till June 1st, 1881, without the consent and knowledge of the said defendant, T. M Marquett." The other defendants demurred to the petition for want of jurisdiction in the court, and the demurrer being overruled filed an answer wherein they allege that they, at the time of the execution of the note in question and when the action was brought, were residents of Lancaster county, and that service of summons was made upon them in that county. On the trial of the cause the court found that Marquett was merely a surety on said note, and that the plaintiffs below had extended the time of payment of the same without his knowledge or consent, and dismissed the action as to him, but rendered judgment against the other defendants for the sum of $ 428 and costs. The Dunns then appealed to the district court, where they set up substantially the same facts as in the county court. No appeal was taken from the judgment discharging Marquett. The questions presented, therefore, are: 1st. Was the summons properly served upon L. E. and W. H. H. Dunn in Lancaster county? 2d. Have they entered an appearance by appealing from the county to the district court? Sections 51, 52, 53, 54, 55, 56, 57, 58, and 59 of the code designate the county where the actions named therein shall be brought. Section 60 provides that "every other action must be brought in the county in which the defendant or some the defendants reside, or may be summoned." This question was very fully considered in Allen v. Miller, 11 Ohio St. 374, where a firm residing in Cuyahoga county assigned to one Allen an account claimed to be due to it from one Miller, who resided in Hamilton county. Miller answered the petition, not only to the merits, but denying the jurisdiction of the court. It was held that the action was properly dismissed for want of jurisdiction. It is said (page 378): "It seems to us that the words 'defendant' and 'defendants,' as employed in those sections of the code to which reference has been made, in so far as they affect the question of jurisdiction, must be held to mean not nominal defendants merely, but parties who have a real and substantial interest adverse to the plaintiff, and against whom substantial relief is sought; and to hold otherwise would open a wide door to all sorts of colorable devices to defeat the policy of the law in respect to jurisdiction--devices difficult to detect but oppressive and wrongful in their practicable operation." The policy of the law is, that a personal action is to be brought against a defendant--one having an interest adverse to the plaintiff--in the county where such defendant resides or may be served with summons. Certain exceptions are made in the code, § 363, as to witnesses served with summons while attending court in a county different from that in which they reside, which need not be noticed here. But a plaintiff cannot, by joining one whom he alleges is a defendant with others in another county, and take judgment against all, if the proper objections are made, unless the party served in the county where the action is brought is an actual defendant--one having an actual interest in the result of the suit adverse to the plaintiff. Therefore, where defendants reside in different...