Enewold v. Olsen

• Decision Date: 16 January 1894
• Citation: 39 Neb. 59,57 N.W. 765
• Parties: ENEWOLD v. OLSEN.
• Court: Nebraska Supreme Court

39 Neb. 59

57 N.W. 765

ENEWOLD

v.OLSEN.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. In law, the name of a person consists of one given name and one surname, the two, using the given name first and the surname last, constitute such person's legal name; and to be ignorant of either the given or surname of such a one is to be ignorant of such person's name, within the meaning of section 148 of the Code of Civil Procedure.

2. The law requires that a defendant shall be sued by his true name if the same is known or can be ascertained by the party suing him; and, under section 69 of the Code of Civil Procedure, a court obtains no jurisdiction over the person of a defendant served with summons by leaving a copy thereof at his usual place of residence, unless such defendant is designated by his true name, except in cases brought under section 23 of the Code of Civil Procedure.

3. Under section 148 of the Code of Civil Procedure, if a defendant is sued by any name and description other than his true name, except in actions brought under section 23 of the Code of Civil Procedure, a court acquires no jurisdiction over him by the sheriff leaving a copy of the summons at such defendant's usual place of residence. Accordingly, where E. sued “F. Olsen, (full name unknown,)” the sheriff returned that he served the summons on “F. Olsen, (full name unknown,)” by leaving a copy thereof at his usual place of residence. The court defaulted “F. Olsen, (full name unknown,)” and rendered a personal judgment against him. In proceedings by E. against Ferdinand Olsen to show cause why such judgment (the same having become dormant) should not be revived against him, held, that the court acquired no jurisdiction over Ferdinand Olsen by a copy of the summons left at his usual place of residence, and that the judgment rendered against him in the name of “F. Olsen, (full name unknown,)” was a nullity.

4. A person summoned to show cause why a dormant judgment should not be revived against him may interpose the defense that such judgment is void, because the court pronouncing it had no jurisdiction over him, when such lack of jurisdiction appears on the face of the record of such judgment.

Error to district court, Douglas county; Frank Irvine, Judge.

Action by Lawrence C. Enewold against Lewis Ferdinand Olsen to revive a judgment. There was judgment for defendant, and plaintiff brings error. Affirmed.James A. Powers and Switzler & McIntosh, for plaintiff in error.

C. P. Halligan, for defendant in error.

RAGAN, C.

On the 23d day of December, 1886, Lawrence C. Enewold brought suit on an account in the county court of Douglas county against one Olsen. In the petition filed, Olsen was described as “F. Olsen, (full name unknown.)” The sheriff's return of the summons in the case was as follows: “On December 23, 1886, I received this writ, and on December 23, 1886, I served, by leaving a certified copy of this writ, and indorsements thereon, at the usual place of residence of the within-named F. Olsen, the defendant, in Douglas county, Nebraska.” The further proceedings of the county court in the case were as follows: “January 4, 1887, on the call of the docket, this day, it appearing to the court that the defendant, F. Olsen, has been served with a summons, and has failed to appear, plead, answer, or demur thereto, and is in default: Now, therefore, on motion of plaintiff's attorney, it is ordered that default of the defendant be, and the same is hereby, entered against him.” The same day the case came on for trial to the court, L. C. Enewold, the plaintiff, was duly sworn and examined in his own behalf. After hearing the evidence, the court finds that said defendant, F. Olsen, (real full name unknown,) is indebted to the plaintiff in the sum of $433.89. It is further considered, adjudged, etc. February 11, 1892, Lawrence C. Enewold filed in said county court a petition against Ferdinand Olsen, praying for a revivor of said judgment. On said day the county court made an order that said judgment be revived, unless Ferdinand Olsen should show cause why it should not be. On February 18, 1892, a copy of this order was duly served on Ferdinand Olsen, and he appeared in the county court, and objected to a revival of said judgment, on the ground that the same was void, as he (Olsen) was named in the summons “F. Olsen, (full name unknown;)” that the court could only acquire jurisdiction over him by the personal service of summons; and that the leaving a copy of the summons at his usual place of residence was not such service upon him as invested the court with jurisdiction over his person. The county court sustained the objection, and dismissed the application to revive the judgment. Enewold took this order to the district court, where the ruling of the county court was affirmed; and Enewold brings the judgment of the district court here for review.

Section 69 of the Code of Civil Procedure provides: “The service [of summons] shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day.” Section 148 of the Code of Civil Procedure provides: “When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when his true name is discovered, the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words: ‘real name unknown,’ and a copy thereof must be served personally upon the defendant.” The law requires that a defendant shall be sued by his correct name if known to the plaintiff suing him, and this section 69 defines what shall be sufficient notice to him when thus sued. But cases may and do...