German Ins. Co. of Freeport, Ill., v. Frederick

• Decision Date: 19 January 1899
• Citation: 77 N.W. 1106,57 Neb. 538
• Parties: GERMAN INS. CO. OF FREEPORT, ILL., v. FREDERICK.
• Court: Nebraska Supreme Court

57 Neb. 538

77 N.W. 1106

GERMAN INS. CO. OF FREEPORT, ILL.,

v.FREDERICK.

Supreme Court of Nebraska.

Jan. 19, 1899.

Syllabus by the Court.

1. A summons issued from the district court need not state the nature of the action.

2. In suing a corporation, it is not necessary that in the summons it be described as such.

3. A petition--at least, after answer to the merits--is not open to attack because it does not allege the corporate character of the defendant.

4. A writ returned as served on “H. L. Bode” will not be quashed because of the use of initials, unless, at least, it be shown that such initials were in fact a contraction, and not the full name of the person described.

5. An insured is not precluded from recovering on a policy because of misstatements in a written application, when it is made to appear that the application was written by the agent of the insurer, and that the insured truthfully stated to him the facts in question. Such facts may be shown by parol.

6. An insurance policy contained a provision avoiding the policy, should the demised premises “be or become vacant.” They were vacant when the policy was issued, and the agent who issued the policy knew that fact. Held a waiver by the insurer of that provision.

7. A party to an action is not an incompetent witness by whom to prove a transaction with an agent of the other party since deceased.

8. The allowance of certain amendments after trial, so as to conform to the pleadings and the proof, held proper.

9. An affidavit in support of a motion for a new trial on the ground of newly-discovered evidence should state as specifically as practicable the nature of such evidence, and not merely its general object.

Error to district court, Hall county; Thompson, Judge.

Action by Marcus Frederick against the German Insurance Company of Freeport, Ill. Judgment for plaintiff. Defendant brings error. Affirmed.C. J. Garlow and M. T. Garlow, for plaintiff in error.

J. W. Edgerton, for defendant in error.

IRVINE, C.

This was an action by Frederick on a policy of fire insurance issued by the defendant insurance company. From a judgment for the plaintiff, the insurance company prosecutes these proceedings in error.

Before answering, the company filed a special appearance, objecting to the jurisdiction of the court over the person of the defendant. The objections were overruled, and the matter thereof has been preserved by averments in the answer to which a demurrer was sustained, by the motion for a new trial, and by appropriate assignments of error. Following are the grounds stated for the objections to the jurisdiction: “First, because the face of the summons served in the case fails to state upon what the action is based, or the amount claimed; second, because the defendant is not properly defined or designated; third, because the amount claimed by plaintiff is indefinite and uncertain; fourth, because there is no such person as H. L. Bode, upon whom service is represented to this honorable court to have been made.” In addition to the foregoing points, certain others are argued in the briefs. Some relate to matters affecting the form of the return, and were corrected by amendment thereof by leave of the court. Others cannot be considered, because not presented to the trial court. We consider in order those preserved by the foregoing statement: The summons in a case begun in the district court need not state the nature of the action. Section 64 of the Code of Civil Procedure prescribes the requisites of a summons, and contains no such requirement. Section 910, relied on by plaintiff in error, is a part of the provisions regulating practice before justices of the peace, and is not here applicable. The objection that the defendant is not properly defined or designated is based on the fact that the summons described the defendant as the German Insurance Company of Freeport, Ill., and did not state that it was a corporation or a partnership. The section already cited requires the defendant to be named, but it does not require that it should be described. Under this head there are argued in the briefs certain questions as to the method of service on corporations. Undoubtedly, if the defendant were not in fact a corporation, and were served as such, but not in any manner good against an individual or partnership, such objection might be urged by appropriate averments. But the objection here made was not sufficient to raise the sufficiency of the service, conceding that the defendant is a corporation. The objection that the amount claimed is uncertain seems to refer to the indorsement on the writ. Conceding that a service of a proper summons may be avoided for uncertainty in the amount indorsed, there was here no such uncertainty. The indorsement stated an amount certain, with interest, at a rate specified, from a date named. This was certain. It also said, “and an attorney's fee.” Attorney's fees, in such cases, when allowed, are taxed as costs; and the amount need no more be stated by indorsement on the summons than that of other costs,--something which cannot be estimated in advance. Finally, the objection that there is no such person as H. L. Bode is based on the theory that it is a designation of a person by...