Gaines v. Warrick

• Decision Date: 06 March 1925
• Docket Number: 24404
• Citation: 202 N.W. 866,113 Neb. 235
• Parties: PERRY C. GAINES, APPELLANT, v. STEPHEN K. WARRICK, APPELLEE
• Court: Nebraska Supreme Court

202 N.W. 866

113 Neb. 235

PERRY C. GAINES, APPELLANT, v. STEPHEN K. WARRICK, APPELLEE

No. 24404

Supreme Court of Nebraska

March 6, 1925

APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.

AFFIRMED.

Reavis & Beghtol, for appellant.

Hainer & Flansburg, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN, DAY, GOOD and THOMPSON JJ.

OPINION

THOMPSON, J.

This action was begun in the district court for Lancaster county by plaintiff, Perry C. Gaines, against defendants, Stephen K. Warrick, Frank H. Koenig, and Joseph A. Rymer. Warrick and Koenig, residents of Scotts Bluff county, were served there, and Rymer, a resident of Lancaster county, was served in such county. Warrick interposed a special appearance objecting to the jurisdiction of the court over his person, which reads as follows:

"Comes now the defendant, Stephen K. Warrick, and appearing specially and for the sole purpose of objecting to the jurisdiction of the court over his person says that the court is without jurisdiction over the person of the defendant Stephen K. Warrick for the reason:

"That said Stephen K. Warrick is a nonresident of Lancaster county and is a resident of Scotts Bluff county, and that the summons in this case was served upon said defendant and upon Frank H. Koenig in Scotts Bluff county; that the cause of action set forth in the plaintiff's petition does not exist nor have any basis in fact against the said Frank H. Koenig or Joseph A. Rymer, and that Joseph A. Rymer is made a party to the suit for the sole purpose of alleging a cause of action against him so that suit could be brought in Lancaster county and service sent out of the county for the defendant Stephen K. Warrick.

"That the joinder of Joseph A. Rymer with said Stephen K. Warrick in said suit is an improper joinder of defendants.

"That said Joseph A. Rymer is not made a party defendant in good faith, but is named as a party defendant solely for the purpose of service, and that said Joseph A. Rymer and Frank H. Koenig cannot be held nor connected with the cause of action set forth in the plaintiff's petition."

Such special appearance and objection is in the nature of a plea in abatement, and is governed by the same rules. Guthman v. Guthman, 18 Neb. 98, 24 N.W. 435; 1 C. J. 32, sec. 17.

Plaintiff filed no answer or other pleading to the allegations contained in this special appearance. The special appearance was sustained and the cause dismissed as to Warrick. Plaintiff seeks a reversal in this court.

A bill of exceptions has not been preserved and presented to us. In Gretch v. Maxfield, 4 Neb. Unoff. 256, 93 N.W. 934 we held: "Affidavits filed in support of objections to jurisdiction over the person, to be available in proceedings in error, must be preserved by bill of exceptions." Edwards v. Kearney, 14 Neb. 83, 15 N.W. 329; Loar v. State, 76 Neb. 148, 107 N.W. 229. This rule...