Fowler v. Brown

• Decision Date: 05 May 1897
• Citation: 51 Neb. 414,71 N.W. 54
• Parties: FOWLER ET AL. v. BROWN ET AL.
• Court: Nebraska Supreme Court

51 Neb. 414

71 N.W. 54

FOWLER ET AL.

v.BROWN ET AL.

Supreme Court of Nebraska.

May 5, 1897.

Syllabus by the Court.

1. A formal disclaimer, by one made a party defendant to a proceeding in rem, of any interest in the subject of the action, is not a special appearance for the purpose of challenging the jurisdiction of the court over his person, but is in substance a defense requiring the judgment of the court, and amounts to a general appearance.

2. Section 618 of the Code, viz.: “Where defendants disclaim having any title or interest in land or other property, the subject-matter of the action, they shall recover costs, unless for special reasons the court decide otherwise,”--is declaratory merely of the rule in equity, since the discretion reserved to the court implies a determination from an inspection of the pleadings of defendants' right to be dismissed from the action.

3. The service of a formal summons is not essential in order to give the district court jurisdiction over a defendant in an action in rem for the purpose of a cross petition filed by a co-defendant after answer day. Patten v. Lane, 63 N. W. 938, 45 Neb. 333.

4. When a court of equity has acquired jurisdiction over a cause for any purpose, it may retain it for all purposes, and proceed to a determination of all issues made by the pleadings.

5. Service by publication or in such manner as may be authorized by statute is sufficient in proceedings substantially in rem; but where the purpose of the action is to determine the personal rights of the parties, and to enforce a mere personal obligation against the defendant, personal service within this state is essential to the jurisdiction of the court. Brewing Ass'n v. Peterson, 60 N. W. 373, 41 Neb. 897.

Error to district court, Lancaster county; Strode, Judge.

Action by Stephen Douglas Bayer against G. K. Brown and others. From the judgment, Fowler and another, defendants, bring error. Affirmed.Hall & McCulloch, for plaintiffs in error.

Harl & McCabe, James McNeny, and John H. Ames, for defendants in error.

POST, C. J.

The action out of which this proceeding arose was brought by Stephen Douglas Bayer in the district court for Lancaster county to foreclose a mortgage executed by George K. Brown and wife in favor of J. R. and L. C. Richards, to secure certain notes of the said George K. Brown and his brother Charles T. Brown, payable to the order of the mortgagees named. Among the several parties named as defendants to that action were the said George K. and Charles T. Brown, Benjamin B. Dow, and the plaintiffs in error, Bernard Fowler and the Fowler Elevator Company. Personal service was had upon the Browns and certain other defendants, but return “Not found” was made as to the plaintiffs in error and Dow. The last-named defendant, however, on the 24th day of February, 1893, and previous to the day named therefor in the summons, filed his answer, admitting the existence of the Bayer mortgage and its lien in the order claimed, but denying knowledge of the ownership thereof or the amount due thereon, and asking that the plaintiff be put upon his proof in that regard. Accompanying his answer was a cross petition for the foreclosure of a mortgage executed by the said George K. Brown and wife upon the premises described in petition, to his co-defendant Charles T. Brown, to secure notes payable to the latter in the aggregate sum of $15,000. Said notes and mortgage were, according to the allegation of the answering defendant, sold and transferred before maturity, for value, to the plaintiffs in error, Bernard Fowler and the Fowler Elevator Company, from whom they were by said defendant purchased in the usual course of business, before maturity. The prayer of the cross petition was for an accounting of the amount due on said notes and mortgage, for a decree of foreclosure, and personal judgment for any deficiency remaining after exhausting the proceeds of the mortgaged property. On the 1st day of April, 1893, the plaintiffs in error voluntarily appeared in said cause, and filed a disclaimer in the following words: “Come now the said Fowler Elevator Company and Bernard Fowler, defendants herein, and disclaim any and all right, title, claim, or demand in this action or to the premises described in the petition filed in this action. Wherefore these defendants pray to be dismissed out of court, at the cost of the plaintiff. Fowler Elevator Company, per C. H. Fowler, Treasurer. Bernard Fowler.” On May 25, 1893, George K. Brown, Charles T. Brown, and David W. Brown asked leave to answer within 10 days, which request was by the court denied; whereupon the two former filed an answer instanter, containing a general denial of the allegations of Dow's cross petition. On October 3, 1893, David W. Brown and the firm of Charles T. Brown & Bros. asked to be made parties defendant, on the ground that they were necessary parties to the controversy, by reason of an interest therein adverse to Dow and the Fowlers, which motion was on October 13th sustained by the court. On October 16th, the several defendants, to wit, George K. Brown, Charles T. Brown, David W. Brown, and the firm of Charles T. Brown & Bros., joined in an answer admitting the execution of the notes and mortgage described in Dow's cross petition, but denying the latter's ownership thereof, and alleging that said securities were the property of the Fowlers, the real parties in interest, and for whose benefit the said cross petition was prosecuted. It was further alleged, also, by way of a cross petition, that the lots described in the said mortgage were at the date of the execution of that instrument owned by the firm of Charles T. Brown & Bros., which was composed of the said George K., Charles T., and David W. Brown, and that the notes executed by the said George K. Brown to his co-defendant Charles T. Brown were, at the time of the transfer thereof by the latter to the Fowlers, the property of said firm; that the Fowlers and the firm of Charles T. Brown & Bros. had previous to the transaction last mentioned been engaged together in the buying and selling of grain; and that the notes described in the cross petition, together with other securities, property of the Browns, had during the course of such business been turned over to the Fowlers, and by the latter converted to their own use. It was charged also that there was a large sum due Charles T. Brown & Bros. on account of such transaction, including the deals in grain and conversion of said securities. The prayer was for an accounting and judgment against the Fowlers and Dow, for the amount found due said firm by reason of the several transactions alleged, and for a decree requiring the surrender by said parties, for cancellation, of the notes above mentioned, with other securities therein particularly described. On October 19th, both Bernard Fowler and the Fowler Elevator Company were served with notice in writing of the filing of the last-mentioned cross petition, and that they were by order of court required to answer within 10 days thereafter. Service of said notice, as shown by the return, duly verified, was made upon both of said parties by copy in the city of Chicago, and also by leaving a copy thereof at the office and last place of business of the Fowler Elevator Company, in Douglas county, in this state, there being no president, chairman of board of directors, of said corporation, or other managing officer or agent thereof, found within said county. The district court, upon a final hearing of said cause at the January, 1894, term, found in favor of the Browns as to each of the allegations of their cross petition, and entered a decree substantially as prayed by them, to which, as appears from the record, “the defendants Bernard Fowler and the Fowler Elevator Company except, and pray an appeal, which is hereby allowed, and forty days given defendants from the rising of court to prepare their bill of exceptions, and the supersedeas bond herein is fixed in the sum of thirty thousand dollars ($30,000.00).” The Fowlers, on a subsequent day of the same term, filed separate motions for the vacation of said decree, alleging, as a reason therefor, that it was as to them without jurisdiction and void, which having been denied, an exception was taken, and the cause removed into this court for review. Separate petitions in error have been filed herein by Bernard Fowler and the Fowler Elevator Company, but which are identical in...