Meyers v. Lepoidevin & Company

• Decision Date: 01 January 1880
• Citation: 4 N.W. 319,9 Neb. 535
• Parties: JOHN A. MEYERS, PLAINTIFF IN ERROR, v. LEPOIDEVIN & COMPANY, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

4 N.W. 319

9 Neb. 535

JOHN A. MEYERS, PLAINTIFF IN ERROR, v. LEPOIDEVIN & COMPANY, DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 1, 1880

This was an action brought in the district court of Gage county by LePoidevin & Co. against Meyers and La Selle to recover $ 116.16, and foreclose a mechanic's lien on a lot belonging to La Selle, which Meyers held by lease. Meyers was not served with summons. La Selle was; appeared in the action, and filed a demurrer, which was overruled. Thereupon the court, presided over by GASLIN, J., in the absence of WEAVER, J., rendered judgment against Meyers for $ 116.16 and costs, and foreclosing the lien upon the premises described in the petition, and barring both Meyers and La Selle from all equity of redemption therein.

REVERSED AND REMANDED.

W. H. Ashby and L. W. Colby, for plaintiff in error.

No appearance for defendant in error.

OPINION

COBB, J.

There seems to have been no service of summons, nor indeed any summons issued against Meyers, the principal defendant in the court below. The plaintiff below filed an affidavit of the non-residence of Meyers as a foundation for substituted or constructive service, but failed to follow it up by either a notice published in a newspaper or service of a summons out of the state. It is accordingly very clear that the district court had no jurisdiction of the person of defendant Myers, and although an action to enforce a lien of this kind is in the nature of a proceeding in rem, yet the judgment is partly in personam; and even were it not in order to give the court jurisdiction to hear and determine the matter at all, it was necessary that either actual or constructive service of a summons in the case be first made on the principal defendant.

Plaintiff in error in his brief claims that the affidavit is not sufficient. I do not deem it necessary to examine that question, because, however liberally this court might be disposed to construe the law as to forms, the service of summons is the foundation of jurisdiction, and where that is entirely wanting, as in this case, all subsequent proceedings must fail.

The judgment of the district court must be reversed.

REVERSED AND REMANDED.