Haynes v. Aultman, Miller & Co.

• Decision Date: 15 February 1893
• Citation: 36 Neb. 257,54 N.W. 511
• Court: Nebraska Supreme Court
• Parties: HAYNES v. AULTMAN, MILLER & CO. ET AL.

36 Neb. 257

54 N.W. 511

HAYNES

v.AULTMAN, MILLER & CO. ET AL.

Supreme Court of Nebraska.

Feb. 15, 1893.

Syllabus by the Court.

1. Where service upon a defendant is made by leaving a copy of the summons at his residence, and judgment is taken against him thereon by default, he may, in an action to revive the judgment, show that the place of service was not his place of residence; that neither he, nor a member of his family, had notice of the action until after judgment had been rendered against him, together with any other defense to the judgment.

2. In an action to revive a dormant judgment certain defenses were set up, which tended to show that the court, when it rendered the judgment, had no jurisdiction of the defendant, and that he had a defense to the action. A demurrer to the answer was sustained. Held, that the defendant should have prosecuted error from the ruling on the answer, and that he could not bring an action by injunction to enjoin the judgment, and set up substantially the same facts as were set forth in his answer.

Error to district court, Antelope county; Powers, Judge.

Action by Henry W. Haynes against Aultman, Miller & Co. and others to enjoin the collection of a judgment. A demurrer to the petition was sustained, and plaintiff brings error. Affirmed.G. M. Cleveland and E. W. Adams, for plaintiff in error.

H. M. Uttley, for defendants in error.

MAXWELL, C. J.

This is an action to enjoin a judgment. A demurrer was sustained to the amended petition, and, the plaintiff not desiring to amend his petition, the action was dismissed. The petition is as follows: “The plaintiff complains of the defendants for that on the 8th day of July, 1880, the defendant Aultman, Miller & Co. obtained three several judgments against the plaintiff, in his absence, before Michael Costello, a justice of the peace, in and for Holt county, Neb., copies of the record of which judgment are hereto attached, marked, respectively, Exhibits ‘A,’ ‘B,’ and ‘C,’ and made a part hereof. (2) On the 6th day of April, 1881, said defendant Aultman, Miller & Co. caused a transcript of said judgment to be filed in the office of the clerk of the district court of Holt county, Neb. (3) No execution was ever issued upon said judgments, or either of them, until the 12th day of December, 1889, as hereinafter stated, and prior to said last-mentioned date no attempt was by said Aultman, Miller & Co. ever made, or threatened to be made, to enforce said judgments, or either of them, or any part thereof, and this plaintiff believed from the facts hereinafter set out that no attempt ever would be made to collect said judgments, or any part thereof, and the said judgments became dormant by lapse of time, and the operation of the law, on the 8th day of July, 1885. (4) That on the 27th day of August, 1888, the defendant Aultman, Miller & Co. filed in the office of the clerk of the district court of Holt county, Neb., three separate motions to revive said judgments, copies of which motions are hereto attached, marked Exhibits ‘1,’ ‘2,’ and ‘3,’ and made a part hereof. (5) That on the 30th day of August, 1888, the Honorable M. P. Kinkaid, judge of the district court of Holt county, Neb., made three separate orders commanding the plaintiff herein to show cause why said judgments should not be revived, which orders were, on the 10th day of September, 1888, served on the plaintiff herein, copies of which orders are hereto attached, marked, respectively, Exhibits ‘4,’ ‘5,’ and ‘6,’ and made a part hereof. (6) That on the 19th day of September, 1888, the plaintiff herein filed in the office of the clerk of the district court of Holt county, Neb., three separate answers, copies of which are hereto attached, and marked, respectively, Exhibits ‘7,’ ‘8,’ and ‘9,’ and made a part hereof. (7) That on the 23d day of October, 1889, defendant Aultman, Miller & Co. filed in the office of the clerk of the district court of Holt county, Neb., a demurrer to said answers of the plaintiff, a copy of which demurrer is hereto attached, marked ‘Exhibit 10,’ and made a part hereof. (8) That on the 9th day of November, 1889, the district court of Holt county, being in session, sustained said demurrer, and entered an order and judgment in said court, intending to revive said judgments, a copy of which order and judgment is hereto attached, marked ‘Exhibit 11,’ and made a part hereof. (9) That on the 12th day of December, 1889, defendant Aultman, Miller & Co. caused an execution to issue out of said district court upon said order and judgment, and caused said execution to be placed in the hands of defendant H. C. McEvony, as sheriff of said county, and said defendant McEvony, as such sheriff, threatens to, and is about to, levy said execution upon the property; and, unless restrained by the order of this court, the defendant will cause the property of this...