Radil v. Sawyer

• Decision Date: 22 October 1909
• Docket Number: 15,600
• Citation: 122 N.W. 980,85 Neb. 235
• Parties: MARY RADIL, APPELLANT, v. ALICE L. SAWYER, ADMINISTRATRIX, APPELLEE
• Court: Nebraska Supreme Court

122 N.W. 980

85 Neb. 235

MARY RADIL, APPELLANT, v. ALICE L. SAWYER, ADMINISTRATRIX, APPELLEE

No. 15,600

Supreme Court of Nebraska

October 22, 1909

REHEARING of case reported in 84 Neb. 143. Reversed and dismissed.

Judgment of the district court reversed and the proceedings dismissed.

OPINION

BARNES, J.

Our former opinion in this case (84 Neb. 143) affirming the judgment of the district court, contains a detailed statement of the facts to which reference will be made in this opinion.

Oral argument was ordered on appellant's motion for a rehearing, and the case has been reargued and again submitted for our consideration. Counsel both for and against the motion have so ably presented the questions involved in this controversy as to render further argument a work of supererogation, and we will therefore dispose of the case without further delay.

It is proper at this point to state that on the 24th day of May 1904, the appellant recovered a judgment against the appellee in justice court of Saline county; that soon thereafter he caused a transcript of that judgment, together with a petition in error, to be filed in the district court, but no summons in error was issued thereon until more than eleven months had elapsed, when by a motion, he asked the court to issue what he called a nunc pro tunc summons in error as of the date of the filing of his transcript, and an order for service thereof. His request was granted; and, when the so-called summons was served, appellant, by special appearance, challenged the jurisdiction of the court. Her challenge was overruled, she elected to stand upon her special appearance, and made no other or further appearance in the case. Some time thereafter the court reversed the judgment of the justice of the peace, and rendered a judgment on the merits against appellant, from which she has appealed to this court.

We held in our former opinion, first, that the district court had no jurisdiction to issue what is called the nunc pro tunc summons in error, and direct that it be served upon the appellant more than eleven months after the rendition of the judgment in her favor in justice court, and that the district court was therefore without any jurisdiction to reverse that judgment. We are satisfied that thus far our former judgment was correct. Bemis v. Rogers, 8 Neb. 149; Rogers v. Redick, 10 Neb. 332, 6 N.W. 413; Benson v. Michael, 29 Neb. 131, 45 N.W. 276; Stull v. Cass County, 51 Neb. 760, 71 N.W. 777. We then decided that, by failing to appear or prosecute error from the judgment of the justice until after the case had been set down for trial and a judgment had been rendered against her on the merits, appellant could not question the jurisdiction of the district court to render such judgment. We are now of opinion that this ruling was wrong and cannot be sustained by either principle or precedent. Appellee contends, however, that the district court had the power to determine the question of its own jurisdiction, and, as no bill of exceptions was preserved upon the order of the court awarding the issuance and service of the so-called nunc pro tunc summons in error, the ruling upon that question, although it was erroneous, was not void, and that order or judgment cannot be reviewed. This would undoubtedly be true if any question of fact upon which jurisdiction depended had been investigated and determined by the district court. Perrine v. Knights Templar's and Masons' Life Indemnity Co., 71 Neb. 267, 98 N.W. 841. But in this case there was no disputed question of fact. Everything relating to the question of jurisdiction fully appeared on the face of the record, so that the question of jurisdiction was simply one of law. In such a case no finding or declaration of the court, if made in disregard of plain statutory provisions, will give it jurisdiction. A court cannot act sua sponte. "Some person must in some legal way invoke its action." 11 Cyc. 670. The test of jurisdiction is whether the tribunal had power to enter upon the inquiry, not whether its methods were regular, its finding right, or its conclusions in accordance with the law. Johnson v. Miller, 50 Ill.App. 60.

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