Perrine v. Knights Templar's and Masons' Life Indemnity Company

• Decision Date: 02 March 1904
• Docket Number: 13,400
• Citation: 98 N.W. 841,71 Neb. 267
• Parties: JOSEPHINE G. PERRINE v. KNIGHTS TEMPLAR'S AND MASONS' LIFE INDEMNITY COMPANY. [*]
• Court: Nebraska Supreme Court

98 N.W. 841

71 Neb. 267

JOSEPHINE G. PERRINE v. KNIGHTS TEMPLAR'S AND MASONS' LIFE INDEMNITY COMPANY. ^[*]

No. 13,400

Supreme Court of Nebraska

March 2, 1904

ERROR to the district court for Jefferson county: CHARLES B LETTON, JUDGE. Reversed.

REVERSED.

Clark Varnum and Montgomery & Hall, for plaintiff in error.

Lamb & Wurzburg and R. A. Clapp, contra.

OLDHAM C. AMES and HASTINGS, CC., concur.

OPINION

OLDHAM, C.

Plaintiff in this cause of action was the beneficiary named in a benefit certificate issued by the defendant, Knights Templar's and Masons' Life Indemnity Company, a mutual benefit association, organized and incorporated under the laws of the state of Illinois, and doing business throughout the several states of the Union. In 1900, the defendant, in compliance with the laws of this state governing mutual benefit associations, signed, sealed and delivered to John F. Cornell, auditor of the state of Nebraska, a power of attorney by which it constituted him, as auditor of the state, and his successors in office its attorney in fact, upon whom all lawful processes in any action or proceeding within the state of Nebraska might be served. Within six months after such power of attorney had been delivered to the auditor of Nebraska, the plaintiff instituted this suit in the district court for Jefferson county, Nebraska, by filing her petition, in which she alleged that defendant was indebted to her on her benefit certificate in the sum of $ 850. On the 3d day of August, 1900, summons was issued on this petition and delivered to the sheriff of Lancaster county, and service of summons was accepted by John F. Cornell as auditor of the state. When this summons was returned, objection to the jurisdiction of the court over the person of defendant was filed and sustained by the district court. An alias summons was thereupon issued and directed to the sheriff of Jefferson county, and service thereon was attempted to be had upon Charles Weston, successor of John F. Cornell, as auditor of the state. This service, on objection, was likewise quashed and plaintiff, by order of the court, was awarded a second alias summons. The second alias summons was accordingly issued and placed in the hands of the sheriff of Jefferson county, and service of the same was made by the sheriff of said county upon Charles Weston, auditor, in the county of Jefferson, on the 21st day of November, 1901. On the 23d day of December, 1901, defendant filed the following objections to the jurisdiction of the district court for Jefferson county:

"Comes now specially the above named defendant, for the sole purpose of objecting to the jurisdiction of the court and for no other purpose, and submits the court is without jurisdiction of the subject matter or of the person of the defendant, for the following reasons: (1) That there has been no service of summons herein. (2) That there has been no legal service of summons herein. (3) That the pretended service is under an alias summons issued without authority, and without a precipe having been first filed therefor. (4) That the defendant was never found nor served with summons in said county, and never could have been found and served with summons in said county. (5) That the defendant is a foreign cooperative and mutual insurance company, doing business in the state of Nebraska only by virtue of license issued to it by said state as such corporation, and neither the alleged cause of action, nor any part thereof, arose in Jefferson county or in the state of Nebraska, and the plaintiff is not now, nor ever has been, a resident or citizen of the state of Nebraska. (6) That, at the time of the filing of the petition in the above entitled cause, under which jurisdiction is claimed to have been obtained, defendant had neither property in nor debts owing to it in said Jefferson county, neither had it an agent in said Jefferson county, nor could it be summoned therein. (7) That the said petition herein, under which the second alias summons was issued, was filed on the 3d day of August, 1900, and summons issued thereon without a then present ability to serve the same upon the defendant, or its alleged agent or attorney, in said Jefferson county, Nebraska; that the said second alias summons, under which service is alleged to have been made, was issued more than one year after the filing of said petition under which it was issued, and after the court had twice sustained objections to its jurisdiction for the reason that, at the time the petition was filed and the cause commenced, no service of summons could be had upon the defendant in said Jefferson county. (8) No service of summons upon the auditor of the state of Nebraska in his official capacity can be made beyond the boundaries of said Lancaster county in said state, his official residence, and that no service of summons herein could be made upon the said auditor. (9) That no service could be had herein upon Charles Weston, auditor of public accounts, in said Jefferson county, or elsewhere. (10) That the alleged service of summons upon the said Charles Weston was and is void."

Affidavits in support of and counter affidavits were filed to these objections, and on the hearing thereof the court rendered the following order and judgment:

"Now on this 16th day of May, 1903, this cause came on to be heard upon the defendant's objections to the jurisdiction of this court; upon due consideration whereof the court doth sustain the objections of defendant as to jurisdiction. To which ruling of the court the plaintiff then and there duly excepts, and forty days from the rising of the court is given to plaintiff to prepare and present her bill of exceptions. And, thereupon, the following order was made by the court, to wit: "This cause is hereby dismissed at plaintiff's costs.'"

To reverse this judgment, the plaintiff brings error to this court...