Mosher v. Huwaldt

• Decision Date: 23 April 1910
• Docket Number: 15,993
• Citation: 126 N.W. 143,86 Neb. 686
• Parties: WILLIAM MOSHER, APPELLANT, v. AUGUST HUWALDT ET AL., APPELLEES
• Court: Nebraska Supreme Court

126 N.W. 143

86 Neb. 686

WILLIAM MOSHER, APPELLANT, v. AUGUST HUWALDT ET AL., APPELLEES

No. 15,993

Supreme Court of Nebraska

April 23, 1910

APPEAL from the district court for Cedar county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Wilbur F. Bryant and George W. Wiltse, for appellant.

W. W Quivey and C. B. Willey, contra.

OPINION

SEDGWICK, J.

On the 30th day of January, 1908, the plaintiff filed his petition in the district court for Cedar county, and on the 3d day of February, 1908, procured a summons to be issued thereon against the defendant directed to the sheriff of Cedar county. The defendants were both residents of Pierce county, and were not in Cedar county on the day the summons was issued, but afterwards, on the 14th day of February, following, the summons was duly served by the sheriff of Cedar county, and within that county, upon one of the defendants. The other defendant was not served. Ten days later the defendants jointly filed a special appearance. In this they allege that they were at all times since January 1, 1908, residents of Pierce county, and objected to the jurisdiction of the court for the reason that "neither of the said defendants were in Cedar county on February 3, 1908, the date of the commencement of this action, nor were they at said time residents of said county." The court sustained the objection and dismissed the case, and the plaintiff has appealed.

The plaintiff has furnished us a vigorous though not very extensive brief. He refers to no authorities from other jurisdictions, but bases his contention entirely upon the construction of the statute, which is as follows: "Every other action must be brought in the county in which the defendant, or some one of the defendants, resides, or may be summoned." Code, sec. 60. This section of the code seems to have been borrowed from the code of Ohio, and that court has several times considered it, but never, so far as we have observed, has construed it with reference to the precise point here presented. In Osborn v. Lidy, 51 Ohio St. 90, 37 N.E. 434, that court said: "The chapter of the civil code on the venue of actions prescribes reasonable and convenient rules with respect to the places where actions may be prosecuted, which, like other provisions of the code, must be construed liberally, with a view of advancing the remedies it affords." Construing the statute liberally with a view of advancing the remedies it affords, as suggested by that court, the writer would have hesitated to hold the service in question insufficient, if it were a matter of first impression.

Section 62 of the code provides: "A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon." Section 19 provides: "An action shall be deemed commenced, within the meaning of this title, as to the defendant, at the date of the summons which is served on him." An action is begun, so far as anything on the part of the plaintiff is necessary, when the petition is filed and summons is issued thereon. He may begin his action in any county where the defendant "may be summoned." If he begins his action and the defendant is in fact regularly served with summons in the county where the action is begun, it would seem that a liberal construction of the statute with a view to furnish him a remedy might lead to the conclusion that he had begun his action in the county where the defendant "may be summoned." No doubt in many cases this might result in hardship to defendant. Petitions might be filed in several counties and summons issued with the purpose of serving the defendant whenever he might happen to go into any one of the counties. And so the defendant would be compelled to defend at a place distant from his home where it might be inconvenient for him and his witnesses. But this condition is not wholly remedied by the construction that the trial court has put upon the statute. The defendant may still be sued in a county distant from his home. Perhaps a more just practice is furnished by providing for the place of trial instead of limiting the place of beginning the action, as in New York, and other states. The matter is, of course, peculiarly within the discretion of the legislature, and the province of the courts is to ascertain the meaning of the legislature. The question here considered has been many times discussed by this court.

The plaintiff insists that it has never been before this court so as to be necessarily determined. In Coffman v Brandhoefer, 33 Neb. 279, 50 N.W. 6, it was said in the opinion: "Clearly the meaning of section 60 is that actions like this, if not instituted in the county where the defendant resides, must be begun in the county where the defendant actually is, and the summons must be served upon him while in the county. The suit cannot be commenced before he enters the county." In that case the defendant resided in Keith county, and the suit was begun in Douglas county. Attachment was also issued...