Epp v. Fed. Trust Co.
| Decision Date | 10 June 1932 |
| Docket Number | No. 28009.,28009. |
| Parties | EPP ET AL. v. FEDERAL TRUST CO. ET AL. |
| Court | Nebraska Supreme Court |
EPP ET AL.
v.
FEDERAL TRUST CO. ET AL.
No. 28009.
Supreme Court of Nebraska.
June 10, 1932.
1. “The test for determining whether an action is rightly brought in one county against the defendant found and served therein, so that others made defendants may be served in a foreign county, is whether the defendant served in the county in which the action is brought is a bona fide defendant to that action--whether his interest in the action and the result thereof is adverse to that of the plaintiff.” Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080.
2. In an action in personam brought to recover a money judgment only, where the local defendant has no interest in the action or the result of it adverse to the plaintiff, jurisdiction cannot be acquired over a nonresident codefendant by the service of summons upon him in a county other than that in which the action is begun.
3. Numerous persons gave their individual notes for a membership fee in the Nebraska Wheat Growers Association. Separate actions at law thereon were instituted in a county other than the county of their residence by the holder thereof, and a local defendant was joined with the nonresident defendant; service was had upon the local defendant and by alias summons upon the nonresident defendants in another county, and it appears that the local defendant had no interest in said actions and the result thereof adverse to the plaintiff, but was joined with the nonresident defendant for the purpose of clothing the court with apparent jurisdiction over him. After many such actions were begun, some of the nonresident defendants, against whom suits were pending, and other nonresident makers of such notes threatened with similar actions, brought an action in equity to enjoin further prosecution of pending actions and the bringing of other similar actions. Held under the facts indicated, equity will not assume jurisdiction to grant the injunction simply to prevent a mere procedural wrong, where there is no evidence proving or tending to prove a meritorious defense, common to all nonresident makers of the notes, to the actions at law.
Appeal from District Court, Lancaster County; Chappell, Judge.
Action by E. A. Epp and others against the Federal Trust Company and others. From the judgment rendered, the defendants Federal Trust Company and Wheat Growers Finance Company appeal.
Reversed, and cause remanded for a new trial.
Beghtol & Foe and J. Lee Rankin, all of Lincoln, for appellants.
F. L. Bollen, of Friend, and J. C. McReynolds, of Lincoln, for appellees.
Heard before GOSS, C. J., DEAN and EBERLY, JJ., and CHASE and LOVEL S. HASTINGS, District Judges.
HASTINGS, District Judge.
This is an action in equity brought by E. A. Epp and others, nonresidents of Lancaster county, on their own behalf and for others similarly situated, to enjoin the Federal Trust Company, the Wheat Growers Finance Company, corporations with their principal places of business in said county, and others, from collecting default judgments, from prosecuting pending suits, and from commencing other threatened suits in the justice court of E. G. Maggi or any other court in said county.
There is no conflict in the evidence. It is established that the plaintiffs and the others in whose behalf the action is brought are members of the Nebraska Wheat Growers Association, which name was changed later to that of the Midwest Grain Marketing Association. The Nebraska Wheat Growers Association was organized as a nonstock cooperative association under chapter 80, Laws 1925, now sections 24-1401 to 24-1414, Comp. St. 1929, to “promote, foster and encourage the business of marketing wheat cooperatively; to minimize speculation and waste in the production and marketing of wheat and wheat products; to establish wheat markets; to handle cooperatively and collectively the problems of wheat growers.” To become a member of the association it was necessary to sign what is known as a “Standard Marketing
[242 N.W. 923]
Agreement,” consisting of two pages of finely printed matter wherein the members agreed to market their wheat through said association. Attached to said marketing agreement was an application for membership in the association, and a membership note, by the terms of which the member agreed to pay $10 to the order of the association on or before July 15, 1929. All the marketing agreements, the applications for membership, and notes were in the same form.
About fourteen thousand persons engaged in raising wheat in Nebraska signed said marketing agreements, applications for membership and notes. For the purpose of providing money to pay the debts which the association would be required to incur before the membership notes became due and payable, the Wheat Growers Finance Company was incorporated September 14, 1928, with a capital stock of $50,000, and under a written agreement entered into between the association and the Wheat Growers Finance Company said finance company agreed to purchase all the contract membership notes obtained by the association for $7.50 each, and the association under said agreement agreed to assign and guarantee the payment of all such membership notes. The finance company, not having sufficient resources of its own to purchase all the membership notes, entered into a trust agreement with the Federal Trust Company, whereby the finance company was to issue its collateral trust gold notes, which the trust company was to negotiate for the finance company, and as security therefor were to sign and indorse to the trust company all the contracts and membership notes purchased by them. The trust agreement further provided that the trust property for the security of outstanding collateral gold trust notes should consist of membership contract notes for the payment of the principal, amounting in the aggregate to at least 120 per cent. of all outstanding collateral trust gold notes, and if at any time a deficiency in the trust property should occur, the finance company, without demand or other action upon the part of the trustee, should forthwith...
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