Miller v. Plue

• Decision Date: 17 September 1895
• Citation: 64 N.W. 232,45 Neb. 701
• Parties: MILLER v. PLUE ET AL.
• Court: Nebraska Supreme Court

45 Neb. 701

64 N.W. 232

MILLER

v.PLUE ET AL.

Supreme Court of Nebraska.

Sept. 17, 1895.

Syllabus by the Court.

1. In an action before a justice of the peace, where the defendant does not appear, the record must show that legal service of the summons was made, or the judgment will be void.

2. A justice of the peace must enter upon his docket the day and hour fixed in the summons

for the time of trial, and the omission to do so is fatal, where there is no appearance of the defendant.

3. Where the defendant fails to appear, the record must disclose that the plaintiff appeared within one hour of the time named in the summons for appearance, or jurisdiction is lost.

4. In an action of replevin, where the defendant claims to hold the property by virtue of the levy of an execution regular on its face, the writ and levy thereunder will confer upon the officer no right to hold the property, as against the owner, if the execution was issued upon a void judgment.

5. The second point of the syllabus in Wilson v. Macklin, 7 Neb. 50, overruled.

Error to district court, Lincoln county; Neville, Judge.

Action in replevin by Christ Miller against T. W. Plue and others. Defendants had judgment, and plaintiff brings error. Reversed.

Grimes & Wilcox, for plaintiff in error.

T. Fulton Gantt and James M. Ray, for defendants in error.

NORVAL, C. J.

This was a suit in replevin brought by the plaintiff in error in the county court of Lincoln county for the recovery of the possession of six head of cattle. From a judgment in favor of the defendants, the plaintiff prosecuted an appeal to the district court, where, upon a trial to the court, judgment again went against him. A reversal is sought on the ground that the findings and judgment are contrary to law and the evidence in the case. There is no controversy as to the facts. It was stipulated upon the trial that, at the commencement of the action, plaintiff was the owner of the cattle in dispute; that they were taken from his possession by the defendant M. L. Artlip by virtue of an execution issued by J. E. Cussins, a justice of the peace of Somerset precinct, in said county, in a suit wherein the defendant in error herein G. W. Plue was plaintiff, and Christ Miller was defendant; that a demand for a return of property was made by plaintiff prior to the commencement of this suit. It is contended that the execution under which the defendants attempted to justify was not issued upon a valid judgment. The following is the record made by Justice Cussins, as appears by the docket introduced in evidence on the trial:

“Transcript of proceedings had before me, a justice of the peace of _____ precinct, _____, in Lincoln county, in the state of Nebraska, in an action wherein _____ was plaintiff, and _____ was defendant.

Bill of Particulars. The plaintiff says there is due him from the defendant the sum of $37 for trespass and damage done by his stock on his farm.

Summons issued April 27, 1891. Summons returned May 2, 1891. Case was called. Plaintiff appeared. Defendant did not appear. Witnesses: Alex Green, G. W. Moore, Charles McDonal, H. C. Lord, D. McGahey, Ed. Changnon, and Mel Young.

By request of G. W. Plue, plaintiff, judgment rendered on default, May 2, 1891, for the plaintiff, for the sum of $19 and all costs. May 18, 1891, execution issued and delivered to M. L. Artlip, special constable.”

It will be observed that the docket of the justice fails to disclose the day and hour specified in the summons for the appearance of the defendant, nor does it appear that service of the writ was ever had upon him. Nor, if made, that it was served at least three days before the time set for trial, as required by statute. It is shown that Miller never appeared before the justice. Therefore it was necessary for the docket to show affirmatively that jurisdiction was acquired over his person by the service of process upon him within the time and in the mode prescribed by statute. In other words, it was indispensable that the docket, by a reasonable intendment, disclose that the justice had jurisdiction of the person of the defendant. While it is true that the docket entry shows that the plaintiff appeared, the trial was had, and judgment was rendered on the 2d day of May, 1891, yet it is not shown that that was the day fixed for the return of the summons. Nor does the docket state at what hour the plaintiff appeared and the case was called for trial. By section 916 of the Code, the parties to a suit in a justice court are given one hour in which to appear, after the time named in the summons for appearance; and, unless the plaintiff appears within the hour, jurisdiction is lost, where the defendant makes default. So far as the justice's docket discloses, the case may have been called and judgment rendered before the hour mentioned in the summons, or several hours thereafter. The omission of the justice to state in his docket the hour for the appearance of the defendant, and the time when the case was called for trial, are jurisdictional defects, and render the judgment void. Mudge v. Yaples (Mich.) 25 N. W. 297;Post v. Harper (Mich.) 28 N. W. 161. The doctrine of presumptions in favor of the regularity of the proceedings of courts of general jurisdiction does not apply to courts of inferior and limited jurisdiction, but as to such courts the facts necessary to give jurisdiction must fairly appear from the record. State v. Berry, 12 Iowa, 60;Goodrich v. Brown, 30 Iowa, 291;McCurdy v. Baughman (Ohio Sup.) 1 N. E. 93;Repine v. McPherson, 2 Kan. 340;Hargis v. Morse, 7 Kan. 415. It is a familiar rule that a personal judgment without jurisdiction of the person of the defendant is void. Supra.

There being no valid judgment, the next question presented is whether the execution and levy thereunder conferred upon Artlip, or the execution creditor, any right or authority to hold the property seized under the writ. It is a general rule...