Ley v. Pilger

• Decision Date: 03 January 1900
• Docket Number: 9,065
• Citation: 81 N.W. 507,59 Neb. 561
• Parties: KARL LEY v. ADAM PILGER ET AL
• Court: Nebraska Supreme Court

81 N.W. 507

59 Neb. 561

KARL LEY v. ADAM PILGER ET AL

No. 9,065

Supreme Court of Nebraska

January 3, 1900

ERROR from the district court of Stanton county. Tried below before EVANS, J. Affirmed.

AFFIRMED.

Brome & Burnett, for plaintiff in error.

John A Ehrhardt, contra.

OPINION

SULLIVAN, J.

Adam Pilger and Fred Feyerherm sued Karl Ley in the county court of Stanton county to recover $ 280, claimed to be due upon a note and account. The summons was issued and served on April 21, and was made returnable on the first day of the following month, which was the first day of the May term. The defendant made no appearance in the action, and on May 2 judgment was rendered against him by default. He afterwards prosecuted error to the district court, where the judgment of the county court was affirmed. We are of opinion that the judgment of affirmance is right, and that there is no error in the record brought here for review. The case being within the enlarged jurisdiction of the county court, the issuance, service and return of the summons was regulated by section 8, chapter 20, Compiled Statutes, 1899, which is as follows: "In all cases commenced in said courts wherein the sum exceeds the jurisdiction of a justice of the peace, it shall be the duty of the county judge to issue a summons, returnable on the first day of the next term of said court, if there be ten days intervening between the issuance of the summons and the first day of the term, and if not, then to be made returnable on the first day of the next term thereafter, which summons shall be directed and delivered to the sheriff or any constable of said county, and the sheriff or constable shall serve the same upon the defendant as in other civil cases, at least ten days before the return day thereof. When the summons has not been served ten days before the first day of the term, the cause shall stand continued until the next regular term of said court, and shall then stand for trial, without further notice to the defendant." Only nine days intervened between the 21st day of April and the first day of the May term, and, therefore, under the provisions of the section quoted, the summons should have been made returnable on the first Monday in June.

It is contended by counsel for Ley that the process issued by the county judge was unauthorized and void; that the county court did not acquire jurisdiction of the person of the defendant and that the judgment pronounced is a nullity. The opinion in Crowell v. Galloway, 3 Neb. 215, contains some expressions which seem to countenance the claim that the commission of an error in fixing the answer day or the return day of a summons, would make the writ void; but no such question was decided in that case. In Clough v. McDonald, 18 Kan. 114, and in Swerdsfeger v. State, 21 Kan. 475, it was held that the insertion of an erroneous return day in a summons renders the process irregular, but not void. This we think the...