Howard v. Jay

• Decision Date: 14 December 1888
• Citation: 25 Neb. 279,41 N.W. 148
• Parties: HOWARD ET AL. v. JAY.
• Court: Nebraska Supreme Court

25 Neb. 279

41 N.W. 148

HOWARD ET AL.

v.JAY.

Supreme Court of Nebraska.

Dec. 14, 1888.

Syllabus by the Court.

An action was instituted before a justice of the peace. Prior to the return-day the defendants caused subpœnas to be issued for their witnesses, which were served, and the witnesses appeared. On that day the trial was adjourned for 30 days on the application of the plaintiff. On the day to which the trial was adjourned the defendants appeared and objected to the jurisdiction of the court over them. The objection was overruled, and upon being required by the court to plead or be defaulted, they withdrew from court, and the trial proceeded in their absence, resulting in a judgment against them. They appealed the case to the district court, where, upon motion, the appeal was dismissed as having been taken from a judgment rendered in their absence. Held error.

Error to district court, Frontier county; COCHRAN, Judge.

Replevin by Mary E. Jay against Howard Bros. Defendants' appeal in the district court from a judgment of the justice in favor of plaintiff was dismissed, and they bring error.George H. Stewart and W. S. Morlan, for plaintiffs in error.

REESE, C. J.

This was an action in replevin, instituted by defendant in error against plaintiffs in error before a justice of the peace of Frontier county. The transcript from the docket of the justice of the peace shows that the action was commenced on the 5th day of September, 1887. A summons was issued, returnable on the 12th day of the same month, and delivered to the constable for service and execution. The return of the constable shows that he levied upon the property in dispute, caused it to be appraised, and, after the execution of the proper undertaking by the plaintiff in the action, the property was delivered to her. The service of summons was made by delivering to the agent of plaintiff in error a certified copy thereof. On the 7th day of September the defendants in the action, who are plaintiffs in error here, procured the issuance of a number of subpœnas for their witnesses to appear on the day set for the trial, but upon that day defendant in error filed an application for an adjournment for 30 days, which was granted, and the cause adjourned to the 12th day of October of the same year. On that day the parties appeared at the time set for the trial, when the plaintiff in the suit asked leave for the constable to amend his return so as to conform to the facts; but the constable refused to amend, saying that the return was true and correct. The plaintiff in the case asked that defendants be required to “plead to the issues, or stand defaulted.” This motion was sustained. It appears, inferentially, that the constable had failed to properly certify the copy of the summons, which he had delivered to the agent of defendants in the action. By permission of the court he placed his certificate upon the copy in the usual form. Defendants then filed a motion objecting to the jurisdiction of the court over the person of defendants for the following reasons: “(1) That these defendants have not been duly and legally served with summons as required by law; (2) that the defendants have not been served with summons in this case.” This objection was overruled, and the case ordered to proceed to trial, when the defendants withdrew from the court, and the trial proceeded, which resulted in a finding and verdict in favor of the plaintiff...