Hendrickson v. Sullivan

• Citation: 28 Neb. 790,44 N.W. 1135
• Parties: HENDRICKSON v. SULLIVAN ET AL.
• Decision Date: 18 February 1890
• Court: Nebraska Supreme Court

28 Neb. 790

44 N.W. 1135

HENDRICKSON

v.SULLIVAN ET AL.

Supreme Court of Nebraska.

Feb. 18, 1890.

Syllabus by the Court.

1. When all parties to a joint judgment have not been brought before a reviewing court in proceedings in error, as either plaintiff or defendant in error, and no excuse is given for not doing so, the defendant may have the case dismissed.

2. It is not necessary that a summons in error should be served within one year from the date of the rendition of the judgment sought to be reversed. If the summons that is served is issued within the year it is sufficient.

Error to district court, Cass county; FIELD, Judge.

Motion to dismiss proceedings in error.

Adams, Lansing & Scott, for plaintiff in error.

A. N. Sullivan, for defendants in error.

NORVAL, J.

The plaintiff in error, Christiana F. Hendrickson, sued the defendants in error, Albert N. Sullivan and Allen Beeson, in the district court of Cass county, on a cause of action joint in form. The cause was tried to a jury, and a verdict returned finding for both the defendants. Judgment was rendered on the verdict in favor of the defendants, and against the plaintiff, on the 21st day of December, 1887. On the 20th day of December, 1888, a petition in error was filed in this court by the said Christiana F. Hendrickson, and on said day a summons in error was duly issued against said Sullivan and Beeson, which was served upon the defendant Sullivan only, on the 12th day of January, 1889. No service was ever obtained or attempted on the defendant Beeson, nor has he made any appearance in the cause in this court. The defendant in error Sullivan moves to dismiss the cause for the following reasons: (1) No service of summons has been made upon his co-defendant, Allen Beeson. (2) That service of summons was not had on this defendant within one year from the rendition of the judgment sought to be reversed. The failure to serve the summons in error within one year from the date of the judgment is no cause for dismissing the case. This court has so held in the case of Rogers v. Redick, 10 Neb. 332, 6 N. W. Rep. 413. The following is the third clause of the syllabus in the case: “A summons in error must be issued within one year from the date of the judgment or final order sought to be reviewed, although it may be served afterwards.” The first point in the motion to dismiss is well taken. The judgment of the district court is a joint one, in favor of both the defendants. No excuse is...