Johnson v. Carpenter

• Decision Date: 20 June 1906
• Docket Number: 14,363
• Citation: 108 N.W. 161,77 Neb. 49
• Parties: EDMUND JOHNSON, APPELLANT, v. JUDSON CARPENTER, APPELLEE
• Court: Nebraska Supreme Court

108 N.W. 161

77 Neb. 49

EDMUND JOHNSON, APPELLANT, v. JUDSON CARPENTER, APPELLEE

No. 14,363

Supreme Court of Nebraska

June 20, 1906

APPEAL from the district court for Butler county: BENJAMIN F. GOOD JUDGE. Reversed.

REVERSED.

W. T Thompson, for appellant.

Matt Miller, contra.

OLDHAM C. AMES and EPPERSON, CC., concur.

OPINION

OLDHAM, C.

This was a proceeding to revive, on motion and affidavit, a judgment entered in the county court of Butler county. Nebraska, in a cause within the jurisdiction of a justice of the peace, in which Judson Carpenter was plaintiff and Ed. Johnson, defendant. The suit was on an open account, and was instituted on the 6th day of November, 1891. Summons was returned on November 13, 1891, showing that it had been served on defendant, "by leaving at his usual place of residence, the within named defendant, a certified copy of this summons and all the indorsements thereon." Defendant failed to appear, and judgment by default was entered against him on November 24, 1891. On July 10, 1900, a motion and affidavit for a conditional order of revivor was filed by the plaintiff in the county court of Butler county, and on this motion and affidavit it was ordered by the court that the judgment be revived unless sufficient cause should be shown by defendant against the revivor. Notice of this proceeding was served on the defendant in Merrick county, Nebraska, by the sheriff of that county, and on the 23d day of August, 1900, defendant appeared specially for the purpose of challenging the jurisdiction of the court, for the reason that the real and true name of the defendant was Edmund Johnson, and not Ed. Johnson, and for the further reason that the county court of Butler county never had any jurisdiction over the defendant to enable it to pronounce any valid judgment against him, because no summons was ever legally served upon the defendant at his usual place of residence, or at any other place. In support of this motion defendant filed affidavits tending to show that he had removed from Butler county, on the 29th of October, 1891, and had established a residence at Beaver Crossing, in Seward county, Nebraska, and was residing there at the time the summons was left at his former place of residence in Butler county. Several affidavits were filed in support of this allegation. Plaintiff filed three counter-affidavits, but none of these went further than to show that the service of summons had been had at the place where defendant resided in Butler county, and there was no traverse of the defendant's allegation that he had sold his place in Butler county, and had removed with all his household goods to Seward county eight or ten days before the summons was attempted to be served. The county court, however, overruled the objections of the defendant and entered an order reviving the judgment. To reverse this judgment of the county court defendant prosecuted his petition in error to the district court for Butler county, where, on a hearing by the court, the judgment of the county court was affirmed and the petition in error dismissed. To reverse this judgment defendant appeals to this court.

It is conceded that, from the showing made in the affidavits defenda...