Newlove v. Woodward

• Decision Date: 15 January 1880
• Citation: 4 N.W. 237,9 Neb. 502
• Parties: MATTHEW NEWLOVE, PLAINTIFF IN ERROR, v. F. D. WOODWARD, ADMINISTRATOR OF THE ESTATE OF G. A. WOODWARD, DECEASED, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

4 N.W. 237

9 Neb. 502

MATTHEW NEWLOVE, PLAINTIFF IN ERROR, v. F. D. WOODWARD, ADMINISTRATOR OF THE ESTATE OF G. A. WOODWARD, DECEASED, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 15, 1880

ERROR to the district court for Nuckolls county. Tried below before WEAVER, J.

Judgment of the district court reversed, and the judgment of the justice of the peace, and cause dismissed.

H. W Short, for plaintiff in error, cited 8 Neb. 109. 3 Neb. 108 Id., 215. Code, sec. 911. 1 Nash Pl., 70.

D. W Barker, for defendant in error.

OPINION

MAXWELL, CH. J.

In the year 1878 George N. Woodward commenced an action against the plaintiff in error before a justice of the peace to recover the sum of $ 9.12. The officer's return to the summons in that case is as follows:

"STATE OF NEBRASKA, Nuckolls County.

"Received this summons this 2d day of December, 1878. I hereby certify that on the 2d day of December, 1878, I served the within writ of summons on the within named Matthew Newlove, by reading to him a true and certified copy of the same with all the indorsements thereon. L. H. PRICE."

On the return day the plaintiff in error appeared specially and objected to the jurisdiction of the court, because there had been no service of a summons upon him by a copy served upon or left at his residence. The motion was overruled for the reason as stated in the transcript, that the plaintiff in error and his attorney were present in court. Judgment was thereupon rendered against the plaintiff in error for the sum of $ 9.50, and costs of suit amounting to the sum of $ 5.40.

The plaintiff herein took the case on error to the district court, where the judgment was affirmed. He now brings the cause into this court by petition in error.

Section 911 of the code provides that "the summons must be returnable not more than twelve days from its date, and must, unless accompanied with an order of arrest, be served at least three days before the time of appearance, by delivering a copy of the summons, with the indorsement thereon (certified by the constable or person serving the same to be a true copy), to the defendant, or leaving the same at his usual place of residence." Gen. Stat., 667. A summons must be served upon a defendant in the mode provided by the statute, in order to give the court jurisdiction, unless the defendant by an appearance waive the defect. A party may appear specially to object to the jurisdiction of the court, but if by motion or otherwise he seeks to bring into action the powers of the court, except on the question of jurisdiction, he will be deemed to have appeared generally. Porter v. The C. & N. W. R. R. Co., 1 Neb. 14. Cropsey v. Wiggenhorn, 3 Neb. 108. Crowell v. Galloway, 3 Neb. 215.

In the case at bar the plaintiff in error restricted his objections to the failure to serve the summons as waived by the statute and therefore did not make a general appearance in the action. The mere presence of a party and his attorney in the court room during a trial will not of itself constitute an appearance...