McKillip v. Harvey

• Decision Date: 05 December 1907
• Docket Number: 14,994
• Citation: 114 N.W. 155,80 Neb. 264
• Parties: PATRICK E. MCKILLIP, APPELLANT, v. R. N. HARVEY, APPELLEE
• Court: Nebraska Supreme Court

114 N.W. 155

80 Neb. 264

PATRICK E. MCKILLIP, APPELLANT, v. R. N. HARVEY, APPELLEE

No. 14,994

Supreme Court of Nebraska

December 5, 1907

APPEAL from the district court for Boone county: JAMES N. PAUL JUDGE. Reversed.

REVERSED.

H. C Vail, for appellant.

H Halderson, contra.

FAWCETT, C. AMES and CALKINS, CC., concur.

OPINION

FAWCETT, C. J.

This case is before us on an appeal from a judgment of the district court for Boone county dismissing plaintiff's action, for the reason, as stated in the judgment of the court, "that it appears on the face of the pleadings filed herein by the plaintiff that, under the law, he has no cause of action." Plaintiff filed his petition, declaring upon a promissory note, the petition being in the usual form, and making all of the necessary allegations to entitle him to recover. An examination of the transcript, dehors the petition, discloses the fact that defendant was a nonresident of the state of Nebraska. Plaintiff filed his affidavit, and sued out a writ of attachment and procured the issuance of a writ of garnishment, making service by publication. Answers were made by the garnishees. Subsequently thereto plaintiff, by leave of court, filed a supplemental petition, asking for equitable relief, on the theory that he had exhausted his legal remedy under his original petition. To this petition defendant filed a special appearance, and moved the court to quash the service of summons, for the reasons: First, that the time intervening between the filing of the petition and the affidavit for publication was so great as to raise a presumption that a change in the facts of the case had occurred during the interim; second, because the affidavit for service by publication did not state that the case was one of those mentioned in section 77 of the code, and did not state facts showing that any of the grounds for service by publication provided in said section existed; third, because the answers of the garnishees in the action then on file showed that the defendant had no property in this state at the time of the commencement of the action; and, fourth, because the notice of publication erroneously stated that two of the garnishees had answered that they had property of the defendant, while the answers of the said garnishees on file showed the contrary to be the fact. As said by SULLIVAN, J., in Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N.W. 484: "The effort of the company evidently was to try the matter and obtain a judgment on the merits while standing just outside the threshold of the court. This it could not do. A party cannot be permitted to occupy so ambiguous a position. He cannot deny the authority of the court to take cognizance of an action or proceedings, and, at the same time, seek a judgment in his favor on the ground that his adversary's allegations are false or that his proofs are insufficient."

The court sustained the second reason above assigned and overruled the other three; gave plaintiff leave to file a new affidavit for service by publication, and continued the cause for service. Plaintiff thereupon filed a new affidavit and gave new notice. Defendant then appeared and filed a demurrer to that petition upon three grounds "First, this court has no jurisdiction of the person of the defendant; second, because two causes of action are improperly joined; third, because it does not state facts sufficient to constitute a cause of action." By agreement of the parties in open court, this demurrer was submitted to the court upon briefs filed by the respective parties. After the submission of the case upon demurrer, and without a ruling thereon, plaintiff asked and...