McCartney v. McCartney
| Decision Date | 05 April 1935 |
| Docket Number | 29180. |
| Citation | 260 N.W. 184,128 Neb. 671 |
| Parties | MCCARTNEY v. MCCARTNEY. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A nonresident whose property has been seized under a writ of attachment may, without making a general appearance, demand the relief to which want of jurisdiction entitles him.
2. A motion by a nonresident whose real estate has been attached for obligations not yet due, if limited to the quashing of the writ and the levy thereof for want of jurisdiction over his person, is not a general appearance.
3. In an action on a claim before it is due, an attachment is allowable only on the grounds and conditions prescribed by statute (Comp. St. 1929, § 20-1049).
4. The statute authorizes an attachment in an action on a claim not due, where the debtor disposed of property or is about to dispose of it or is about to remove it, with a fraudulent intent to cheat his creditors or to hinder or delay them in the collection of their claims, but in absence of all such grounds, his property is not attachable for contractual obligations not yet due.
5. The proper dissolution of an attachment issued on a contractual obligation not yet due terminates the action.
Appeal from District Court, Adams County; Frank J. Munday, Judge.
Action by Mary Charles McCartney against Harold G. McCartney. From a judgment dismissing the petition as to the third cause of action, plaintiff appeals.
Affirmed.
Robert G. Simmons, of Lincoln, for appellant.
Bruckman & Dunmire, of Hastings, for appellee.
Heard before GOSS, C. J., and ROSE, EBERLY, DAY, PAINE, and CARTER JJ.
This is an action to recover judgment for monthly installments of $60 each, which Harold G. McCartney, defendant, obligated himself by written contract to pay to Mary Charles McCartney, plaintiff, for the support of their daughter during the latter's minority. The contract was executed when the parties to it were husband and wife, but living apart from each other. The husband deserted his wife and she procured a divorce from him without an allowance for alimony or a judicial order committing to her the custody of the child who lives with her mother by agreement of the parents. Plaintiff and defendant are nonresidents of Nebraska. They reside in the District of Columbia.
The petition is drawn in a form purporting to state three causes of action, one for each of the following items: First, judgment recovered in the District of Columbia for unpaid installments, $320; second, other delinquent installments, $340; third, amount still to accrue under the contract during the child's minority, $6,840.
The action was prosecuted in the district court for Adams county without personal service therein on defendant. The district court had such jurisdiction as was properly acquired by the attachment of defendant's interest in Nebraska real estate on which the sheriff levied under the writ. In this situation defendant proceeded as follows:
" The defendant appearing specially and for the purpose of this motion only and for no other purpose, moves the court to quash and set aside and discharge the attachment and the levy thereof, for the reason that said attachment was not ordered by the court or any judge thereof and that the affidavit upon which it is based is insufficient and does not meet the requirements of the statutes of Nebraska in such case made and provided and all of which appears from the records and files in the case."
In this challenge to jurisdiction defendant directed his motion jointly to the attachment issued on the claims described in the three alleged causes of action, the first and second being based on matured but unpaid 60-dollar installments and the third on installments not yet due. The district court specifically found that the appearance was special, was so intended, and was not general, but did not dissolve the attachment. The failure to quash as to all three claims was free from error, because the district court had jurisdiction to issue attachments on the past-due claims described in the first and second causes of action. Later, defendant made an appearance in this form:
" The defendant, appearing specially and for the purpose of this motion only and for no other purpose, moves the court to quash and set aside and discharge the attachment and the levy thereon in so far as the same has reference to and is based upon the third cause of action set forth in plaintiff's petition, for the reason that the claim or debt set forth in said cause of action is not yet due and that said attachment was not ordered by the court or any judge thereof and that the affidavit upon which it is based is insufficient and does not meet the requirements of the statutes of Nebraska, in such case made and provided, and all of which appears from the records and files in the case."
Upon a hearing on the second motion...
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