Mosher v. Huwaldt, 15,993.

• Court: Supreme Court of Nebraska
• Writing for the Court: SEDGWICK
• Citation: 126 N.W. 143,86 Neb. 686
• Parties: MOSHER v. HUWALDT ET AL.
• Docket Number: No. 15,993.,15,993.
• Decision Date: 23 April 1910

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. § 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 of Civil Procedure 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...