Gandy v. Jolly

• Citation: 53 N.W. 658,35 Neb. 711
• Parties: GANDY v. JOLLY et al.
• Decision Date: 23 November 1892
• Court: Nebraska Supreme Court

35 Neb. 711

53 N.W. 658

GANDY

v.JOLLY et al.

Supreme Court of Nebraska.

Nov. 23, 1892.

Syllabus by the Court.

1. Where there is actual personal service of process upon a defendant,-as by reading the summons to him in place of serving a copy of the same,-and the defendant does not appear and object on that ground, and judgment is rendered against him, it is not open to collateral attack, as the judgment is not void, but voidable.

2. If there is any irregularity in the manner of service on the defendant of valid process, he must take advantage of such irregularity by motion or other proceeding in the court where the action is pending.

3. Where an action is instituted by attachment against an absconding debtor in the county from which be absconded, process may be served upon him in any other county of the state, and a judgment rendered on such service will be valid, unless he appears and contests the right to maintain the action there.

On rehearing. Denied. For former report, see 52 N.W. Rep. 376.

MAXWELL, C. J.

An opinion was filed in this case, which is reported in 52 N.W. Rep. 376. A motion for a rehearing was granted at the writer's request, in order to avoid the possibility of a mistake, and the case is again submitted to the court. Briefly stated, the defendants in error are partners, and in April, 1888, brought an action by attachment in the county court of Richardson county against one Charles U. Richardson, and the plaintiff in error was served with notice as garnishee. She answered that she had about 2,000 bushels of wheat of Richardson, subject to her chattel mortgage lien thereon for a loan of money. Afterwards judgment was taken by default against Richardson in favor of the defendants in error for the sum of $145, and costs taxed at $33.50, and the plaintiff in error was ordered to pay into court the surplus of wheat held upon her chattel mortgage. This not being done, the defendants in error brought an action against the plaintiff in error for the value of said property. In her answer she denied that the defendants in error had recovered judgment against Richardson. On the trial the defendants in error recovered judgment in the district court against the plaintiff in error, and she now brings the cause into this court, the defense being that there is no valid judgment against Richardson.

The grounds upon which the plaintiff in error bases her claim are that the action was brought in the wrong county, and that service is shown to have been made upon Richardson by reading the summonsto him. Do these defects render the judgment void? In Newlove v. Woodward, 9 Neb. 502, 4 N.W. Rep. 237, in a direct attack upon the judgment based on such service, this court beld it insufficient. That case has been followed in one or two other cases, and no doubt is correct, where objection is made in a proceeding to correct the judgment. But suppose a judgment has been rendered, as in this case, upon such service, is the judgment void? We must bear in mind that the nisi prius court has held it sufficient, and the question is, did that court err? In Black on Judgments (section 224) it is said: “Although the service of process in an action may have been characterized by some defect or irregularity, it does not necessarily follow that the ensuing judgment will be void; for, if the party would take advantage of such a matter, he must do so in the action itself by some proper motion or proceeding. It is only when the attempted service is so irregular as to amount to no service at all that there can be said to be a want of jurisdiction. ...