First State Bank of Whitman v. Ingrum

• Citation: 107 Neb. 468,186 N.W. 334
• Decision Date: 13 January 1922
• Docket Number: No. 21851.,21851.
• Parties: FIRST STATE BANK OF WHITMAN v. INGRUM ET AL.
• Court: Supreme Court of Nebraska

107 Neb. 468

186 N.W. 334

FIRST STATE BANK OF WHITMAN

v.INGRUM ET AL.

No. 21851.

Supreme Court of Nebraska.

Jan. 13, 1922.

Syllabus by the Court.

A transitory action may be brought against two defendants jointly liable in any county in the state where one of the defendants may be served with summons, even though neither defendant is a resident of that county, and thereupon jurisdiction over the other defendant may be acquired by summons served upon him in the county of his residence.

Where an action is commenced against two defendants to enforce a joint liability in a county in which neither defendant resides, and one of the defendants is served in that county and the other in the county of his residence, the latter cannot oust the court of jurisdiction over him by reason of the fact that the defendant who was served in the county where the suit is pending was at the time exempt from the service of summons because he was then in custody of the sheriff and had been brought into and was held in that county solely as a witness in certain criminal actions there pending, since such exemption was a personal privilege which the defendant so served could urge or not as he saw fit, and his codefendant could not claim the privilege for him.

“Error alleged in an instruction to the jury must be called to the attention of the trial court in the motion for a new trial before it will be considered by this court.” Stevenson v. Omaha Transfer Co., 87 Neb. 794, 128 N. W. 503.

Appeal from District Court, Hooker County; E. P. Clements, Judge.

Action by the First State Bank of Whitman against Jesse Ingrum and another for damages for fraud and conspiracy. Verdict and judgment against both defendants, and the defendant Chauncey A. Snyder alone appeals. Affirmed.Geo. W. Wertz, of Schuyler, for appellant.

Wm. C. Heelan, of Valentine, and Horth & Ryan, of Grand Island, for appellee.

Heard before MORRISSEY, C. J., ALDRICH, and FLANSBURG, JJ., and HOSTETLER and MORNING, District Judges.

MORNING, District Judge.

The First State Bank of Whitman brought this action in the district court for Hooker county against Jesse Ingrum and Chauncey Snyder to recover damages for fraud and conspiracy. There was a verdict and judgment against both defendants, and Snyder appeals to this court.

Appellant contends that the district court for Hooker county did not acquire jurisdiction over him by service of summons upon him in Colfax county, where he resided. The circumstances relative to the matter of service were not such as to enable Snyder to raise the jurisdictional question by special appearance and the matter was properly presented and preserved in his answer.

It appears that Snyder held a note for $3,000 against Ingrum, which was secured by a chattel mortgage upon 64 head of Ingrum's cattle. When said note matured Snyder called upon Ingrum for payment, and the latter not then being able to pay, Snyder offered to reduce the indebtedness to $2,900 if Ingrum would borrow the money elsewhere and liquidate the obligation. Ingrum and Snyder called upon the plaintiff bank, and Ingrum borrowed from the bank $2,900 with which to pay Snyder's mortgage, and gave as security a chattel mortgage upon 92 head of cattle, including those described in the Snyder mortgage. The $2,900 thus borrowed was paid to Snyder in satisfaction of his note against Ingrum. When the bank's mortgage matured it was necessary for the bank to look to the security, and it then learned that Ingrum had included in the mortgage a large number of cattle which he did not own and which in fact had no real existence. The theory upon which the bank recovered against the defendants was that, when Snyder called upon Ingrum for the collection of the $3,000 mortgage which the former held upon the latter's cattle, he learned that his security was inadequate because Ingrum did not have the number of cattle specified in the mortgage, and that, thereupon, the two defendants entered into a fraudulent conspiracy whereby they were to induce the bank to loan to Ingrum the funds to pay the Snyder mortgage by overstating the number of cattle which Ingrum actually had and by the execution of a mortgage by Ingrum upon a large number of cattle which he did not own, and that this conspiracy was effectually carried out and the loan from the bank procured thereby. Ingrum admitted the fraud and was the chief witness on behalf of plaintiff to prove the participation therein by Snyder. There is evidence in the record amply sufficient to justify the jury in finding that Snyder was a party to the fraud. In passing upon the jurisdictional question, therefore, the action must be viewed as one instituted and successfully maintained...