Holliday v. Brown

• Decision Date: 16 March 1892
• Citation: 51 N.W. 839,34 Neb. 232
• Parties: JANE HOLLIDAY ET AL. v. WILLIAM B. BROWN
• Court: Nebraska Supreme Court

51 N.W. 839

34 Neb. 232

JANE HOLLIDAY ET AL. v. WILLIAM B. BROWN

Supreme Court of Nebraska

March 16, 1892

MOTION for rehearing of case reported 33 Neb. 657.

Rehearing DENIED.

Reese & Gilkeson, and Bowman & Smith, for the motion.

MAXWELL CH. J. POST, J., concurs. NORVAL, J., took no part.

OPINION

MAXWELL, CH. J.

A motion for a rehearing has been filed in this case accompanied with very full and elaborate briefs. The principal ground upon which a rehearing is sought is that the service of summons on Jane Holliday in the former suit was sufficient and we are referred to the case of Palmer v Belcher, 21 Neb. 58, 31 N.W. 262, to support that proposition. In that case the return was, "On the 23d day of August, 1884, I served the same on the within named defendant, H. J. Palmer, by leaving a copy of the within summons with George Palmer, and by him, the said George Palmer, in my presence at the time of said service delivered the same, being a true copy of the within summons with all indorsements thereon, certified by me to be a true copy, to said H. J. Palmer." This return was duly signed by the officer and it was held sufficient. It is said (p. 60): "The return clearly shows that the copy was delivered to plaintiff in error in the presence and by the act of the sheriff, although passing through the hand of another. It was clearly the act of the sheriff, and it would have been perfectly competent for him to have returned that he delivered the copy to plaintiff in error instead of stating the manner of delivery as he did. Had the sheriff requested George Palmer to return to him the summons and he then have handed it to plaintiff, the service would have been perfect. Why any more so than for George to hand it at once to plaintiff? Suppose plaintiff had been so situated as to be just out of the direct reach of the sheriff, and another person standing between and in the reach of both had taken the copy from the hand of the sheriff and handed it to plaintiff, as was possibly done in this case, why would the service not have been good? We can see no reason for holding it otherwise, even though the return had been made in the language of the one in the case at bar."

In Morse v. Engle, 28 Neb. 534, 44 N.W. 859, a wife had joined with her husband in a mortgage of the homestead. An action was afterwards brought to foreclose the mortgage and a decree of foreclosure and sale rendered. Afterwards the wife brought an action to vacate the decree upon the ground that she had not voluntarily executed the mortgage, that there was no consideration therefor, and that she was not served with summons in the action of foreclosure. In that case the officer called at the residence of the husband, who stated that his wife was entertaining company in the parlor. The officer thereupon handed a copy of the summons to the husband to deliver to his wife, which it is...