Professional Collection Service v. Coble, 41459
| Decision Date | 19 April 1978 |
| Docket Number | No. 41459,41459 |
| Citation | 200 Neb. 683,264 N.W.2d 686 |
| Parties | PROFESSIONAL COLLECTION SERVICE, Appellee, v. Gary COBLE, Appellant, Impleaded with Janet Coble, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
An objection to the name in which a suit is brought must be made before trial or it is waived.
Thomas O. David, Greeley, Colo., for appellant.
Jess C. Nielsen, of Crosby & Nielsen, North Platte, for appellee.
Heard before WHITE, C. J., BOSLAUGH, CLINTON and WHITE, JJ., and COLWELL, District Judge.
This was an action in the county court of Lincoln County, Nebraska, upon an account by Professional Collection Service against Gary Coble and Janet Coble. There was no service upon the defendant Janet Coble and she made no appearance in the county court. The plaintiff recovered judgment in the county court against "defendant" in the amount of $939.76 plus attorney fees in the amount of $98.98 and interest and costs. The defendant Gary Coble then appealed to the District Court where, nearly 2 years later, the appeal was dismissed for lack of prosecution. A motion for new trial filed by both defendants was sustained. The plaintiff then recovered judgment against both defendants in the amount of $425.67 plus attorney fees in the amount of $44.48 and interest and costs. The defendant Gary Coble has appealed. There is no cross-appeal.
The assignments of error relate to the capacity of the plaintiff to sue and the sufficiency of the evidence to sustain the judgment.
The account was for merchandise sold by Miller & Paine, a corporation, of Lincoln, Nebraska, to the defendant Janet Coble, the wife of the defendant Gary Coble, between August 13 and October 24, 1969. The answer of Gary Coble alleged that the defendants were divorced on or about May 6, 1974.
The account was assigned by Miller & Paine to Professional Collection Service on September 25, 1971. The evidence shows that from October 8, 1973, to May 10, 1974, Gary Coble made 8 payments amounting to $189.66 on the account. This action was commenced January 31, 1975.
The petition alleged that the plaintiff was a Nebraska corporation, the Credit Bureau of North Platte, Inc., which operated a collection of accounts division under the name of Professional Collection Service, a duly registered trade name. The defendant made no objection prior to trial to the way in which the action had been brought.
The plaintiff in this case was the Credit Bureau of North Platte, Inc.,...
To continue reading
Request your trial
-
Lawson v. Pass
...or answer, the defendant shall be deemed to have waived the same." These statutes were applied in Professional Collection Service v. Coble, 200 Neb. 683, 684, 264 N.W.2d 686, 687 (1978), where the court said that the "defendant's failure to timely object waived any error based on the defect......
-
DOUGLAS COUNTY COM'RS v. CIVIL SVC. COM'N
...identical to the caption, should also not be considered. Finally, the Commission contends that based on Professional Collection Service v. Coble, 200 Neb. 683, 264 N.W.2d 686 (1978), if this court were to consider the caption, the definition of the parties contained in the body of the petit......
-
Lammers Land and Cattle Co., Inc. v. Hans
...manner. Frederick v. Buckminster, 83 Neb. 135, 119 N.W. 228 (1909) (failure to file demurrer); Professional Collection Service v. Coble, 200 Neb. 683, 264 N.W.2d 686 (1978) (failure to object to error in caption); Gilbert v. Vogler, 197 Neb. 454, 249 N.W.2d 729 (1977) (failure to move to ma......