Hobson v. Cummins

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL, J.
• Citation: Hobson v. Cummins, 57 Neb. 611, 78 N.W. 295 (Neb. 1899)
• Decision Date: 09 February 1899
• Docket Number: 8673
• Parties: HENRY HOBSON, SHERIFF, v. J. A. CUMMINS

78 N.W. 295

57 Neb. 611

HENRY HOBSON, SHERIFF, v. J. A. CUMMINS

No. 8673

Supreme Court of Nebraska

February 9, 1899

ERROR from the district court of Dawson county. Tried below before SINCLAIR, J. Reversed.

REVERSED.

Ricketts & Wilson and E. A. Cook, for plaintiff in error.

References Bair v. People's Bank, 27 Neb. 577; Van Fleet Collateral Attack secs. 369, 436, 437, 439, and citations Maxwell, Code Pleading, 91; Barnes v. McMurtry, 29 Neb. 178; Hanna v. Emerson, 45 Neb. 708; Scroggin v. National Lumber Co., 41 Neb. 196; Langley v. Ashe, 38 Neb. 53; Winters v. Means, 25 Neb. 142; Chicago, B. & Q. R. Co. v. Manning, 23 Neb. 552; Gould v. Loughran, 19 Neb. 392; North Pacific Cycle Co. v. Thomas, 38 P. 307 [Ore.]; Fickes v. Vick, 50 Neb. 401.

George C. Gillan, contra.

References: Walker v. Stevens, 52 Neb. 653; Dailey v. Kinsler, 35 Neb. 836; Cobbey v. Wright, 29 Neb. 274; Dunn v. Haines, 17 Neb. 560; Pearson v. Kansas Mfg. Co., 14 Neb. 211; Cobbey v. Wright, 23 Neb. 250; Allen v. Miller, 11 O. St. 374; Hurlburt v. Palmer, 39 Neb. 175; Rogers v. Green, 33 Tex. 661; Lyman v. Milton, 44 Cal. 630; 24 Am. & Eng. Ency. Law 510, 511; Kellar v. Stanley, 86 Ky. 240; Burleson v. Henderson, 4 Tex. 49; Portwood v. Wilburn, 33 Tex. 713; Graves v. Drane, 66 Tex. 658; Reynolds v. May, 4 Greene [Ia.] 283; Lewis v. Grace, 44 Ala. 307; Burgett v. Williford, 56 Ark. 187; Smith v. Morris, 29 Ga. 339; Bank of Havana v. Magee, 20 N.Y. 355; Bentley v. Smith, 3 Cai. [N. Y.] 170; Scott v. Soans, 3 East [Eng.] 111; Clay v. Oxford, 4 H. & C. [Eng.] 690; Letherbarrow v. Ward, 5 Jur. [Eng.] 388.

OPINION

NORVAL, J.

This suit was instituted by J. A. Cummins against Henry Hobson, as sheriff of Dawson county, to enjoin the enforcement of an execution issued upon a judgment obtained in the county court of Red Willow county by the McCormick Harvesting Machine Company against said Cummins and one Tom Hayden. A general demurrer to the petition was overruled, and the plaintiff electing to stand on his demurrer, a decree was entered perpetually enjoining said execution and judgment. The sheriff prosecutes error.

In the action in which the judgment sought to be enjoined was rendered Hayden was served with process in Red Willow county, and summons was issued to, and was served upon, Cummins in Dawson county. Neither defendant appeared in the action. It is now argued that the county court of Red Willow did not acquire jurisdiction over the person of Cummins, for the reason that Hayden was a nominal defendant merely, and the service of summons upon him in the county in which the writ issued conferred no power to summon the other defendant in another county. The doctrine announced by this court in numerous cases, and which is invoked herein, is that in a personal action the service of a summons in a county where suit is brought, on a nominal defendant merely, does not confer authority to issue summons to another county for a real defendant. (Dunn v. Haines, 17 Neb. 560, 23 N.W. 501; Cobbey v. Wright, 23 Neb. 250, 36 N.W. 505; Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229.) The rule stated might have been urged in the county court of Red Willow county before the judgment against Cummins was rendered, and if it had been then shown that his co-defendant, Hayden, had no substantial interest in the subject of the suit, but was merely a nominal party to the proceeding, no judgment could have been obtained against Cummins. The note which was the basis of that action was payable to C. H. & L. J. McCormick, and indorsed by Tom Hayden. The latter was therefore apparently a proper party defendant, and the service of process upon him in Red Willow county authorized the issuance of a summons to Dawson county for Cummins. (Belcher v. Palmer, 35 Neb. 449, 53 N.W. 380; Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229; Miller v. Meeker, 54 Neb. 452, 74 N.W. 962; Barry v. Wachosky, 57 Neb. 534, 77 N.W. 1080.) If there was collusion or fraud between the execution and judgment plaintiff and Hayden, that was a matter which should have been made an issue in the county court of Red Willow county before the entry of the judgment. The question is not now available. (Van Fleet, Collateral Attack secs. 369, 436, 437.) That court had jurisdiction of the subject-matter, and one of the parties having been summoned within the county in which the suit was brought, that court had the power to issue a summons for the other defendant to any county within the state. (Code of Civil Procedure, sec. 65; Bair v. People's Bank, 27 Neb. 577, 43 N.W. 347.)

It is insisted that the summons served upon Cummins in the action in the county court was void because the writ did not contain the names of both defendants, and was directed to "sheriff or any constable of Dawson county Nebraska." Section 21, chapter 20, Compiled Statutes, provides that all process in civil actions in the county court shall be directed to the sheriff or any constable of the county. Section 910 of the Code of Civil Procedure, relating to summons in actions before justices of the peace,--and the suit in which the judgment was rendered against Cummins was within the jurisdiction of a justice's court,--requires such writs to be "directed to the constable or sheriff of the proper county (except in case a person be deputed to serve it, in which case it shall be directed to such person)." Section 65 of the same Code declares: "Where the action is rightly brought in any county, according to the provisions of title four, a summons shall be issued to any other county, against any one or more of the defendants, at plaintiff's request." It has been held that the section last above quoted is applicable to actions brought in the county court. (Bair v. People's Bank, 27 Neb. 577, 43 N.W. 347; Miller v. Meeker, 54 Neb. 452, 74 N.W. 962.) It is too plain to admit of argument that, when a process is issued by a county judge for a defendant in his own county, the same should be directed to the sheriff or any constable of the county to which the writ is issued. We find no provision in the statute, and none has been cited by counsel for plaintiff below, which requires in an action brought in the...