Mosher v. Huwaldt

Citation126 N.W. 143,86 Neb. 686
Decision Date23 April 1910
Docket NumberNo. 15,993.,15,993.
PartiesMOSHER v. HUWALDT ET AL.
CourtSupreme Court of Nebraska

86 Neb. 686
126 N.W. 143

MOSHER
v.
HUWALDT ET AL.

No. 15,993.

Supreme Court of Nebraska.

April 23, 1910.



Syllabus by the Court.

This court is not ordinarily bound by the construction put upon statutes by former opinions, if such construction is dictum only, being unnecessary to the determination of the case then before the court, but when such construction involves a question of practice only, and has been for more than nineteen years followed by the trial courts, and indirectly several times approved by this court, it will be followed until changed by the lawmakers.

The former decisions of this court construing section 60, Code Civ. Proc., to mean that an action under that section can be begun only in the county where the defendants or some one of the defendants resides or is present in the county at the time of the commencement of the action, are adhered to, and in such case the action is deemed to be commenced as to the defendant so served at the date of the summons which is served upon him in the county in which the action is begun.


Appeal from District Court, Cedar County; Graves, Judge.

Action by Sir William Mosher against August Huwaldt and others. Judgment for defendants, and plaintiff appeals. Affirmed.

[126 N.W. 143]

Wilbur F. Bryant, for appellant.

W. W. Quivey and C. B. Willey, for appellees.


SEDGWICK, J.

On the 30th day of January, 1908, the plaintiff filed his petition in the district court of Cedar county, and on the 3d day of February, 1908, procured a summons to be issued thereon against the defendants 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 Civ. Proc. §...

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