Ritchey v. Seeley

• Decision Date: 06 May 1903
• Citation: 94 N.W. 972,97 N.W. 818,68 Neb. 127
• Parties: JOHN T. RITCHEY ET AL. v. JAMES E. SEELEY
• Court: Nebraska Supreme Court

94 N.W. 972

97 N.W. 818, 68 Neb. 127

JOHN T. RITCHEY ET AL. v. JAMES E. SEELEY

Supreme Court of Nebraska

May 6, 1903

Rehearing appears in 97 N.W. 818.

SEDGWICK J., HOLCOMB, J. SULLIVAN, C. J., dissenting.

OPINION

SEDGWICK, J.

James E. Seeley recovered a judgment against John T. Ritchey and Edward Ritchey in the district court for Cass county on the 10th day of January, 1902. On the 25th day of February, 1902, a petition in error was filed in this court by the said John T. Ritchey and Edward Ritchey against the said James E. Seeley to reverse the judgment. No summons in error was issued on this petition, but with the petition in error there was filed in this court a "voluntary appearance" and waiver of the issuance and service of summons in error, which was in writing, and signed by the attorneys who were the attorneys of record for the said James E. Seeley in the district court.

The said Seeley died four days before the petition in error and "voluntary appearance and waiver" were filed in this court. Afterwards the cause was regularly submitted to this court for determination without any suggestion of the death of the said Seeley, and at the present term of court a judgment was formally entered herein reversing the judgment of the district court and remanding the cause for further proceedings. Afterward the attorneys who had represented Mr. Seeley in the lower court, and had assumed to represent him in this court, appeared as friends of the court and filed an objection to the jurisdiction of the court and motion to "vacate, quash, and hold for naught" all the proceedings had in this court in the said case, and "dismiss the said error proceedings." We think that this motion must be sustained. Proceedings in error in this court to review a judgment of the district court constitute a new action having for its object the reversal of the judgment complained of. "The proceedings in this court are quite analogous to those in ordinary actions. The plaintiff in error is required, within the time limited by the statute, to file a petition showing his right to the relief demanded. He must bring his adversary into court in the usual way and affirmatively establish the material averments of his pleading." Webster v. City of Hastings, 56 Neb. 245, 246, 76 N.W. 565. This was an attempt to begin and prosecute an action against one who was already dead, and such proceedings could not give this court any jurisdiction. The case is to be distinguished from Link v. Reeves, 63 Neb. 424, 88 N.W. 670. In that case it was held that service of summons in error upon the attorney of record in the lower court was good service, although the defendant in error was dead at the time of the service. This was predicated upon the peculiar language of the statute, which provides that "a service on the attorney of record in the original case shall be sufficient," ^[*] but in that case the petition in error was filed and the summons issued on the same day of and presumably before, the death of the defendant in error. The filing of the petition in error and issuance of summons were valid because the defendant in error was living at the time, and it was thought that service of summons upon the attorney of record in the lower court was authorized by the express language of the statute above quoted. If the action had been begun against Mr. Seeley in his lifetime by filing a petition and issuing summons in error, such summons might be served after his death upon his attorney of record in the lower court, and if such summons had been properly served before his death, the action, if relating to real estate, might be revived against his heirs, and if relating to personal property might be revived against his personal representative. Urlau v. Ruhe, 63 Neb. 883. ^[**]But the filing of a petition against a dead man is a nullity, and no summons or appearance thereon can give the court any jurisdiction. "When the record shows that no jurisdiction over the defendant has been acquired, the judgment rendered against such defendant is void, and its invalidity may be shown in any action in which it may be called in question." Fogg v. Ellis, 61 Neb. 829. This judgment having been entered at the present term of court, we have no doubt of the power and duty of this court, upon its attention being called to its want of jurisdiction to render such judgment, to vacate the same.

The motion is sustained.

MOTION SUSTAINED.

The following opinion on rehearing was filed December 16, 1903. Former decision, Ritchey v. Seeley, ante, p. 127, re-examined and adhered to, SULLIVAN, C. J., dissenting:

HOLCOMB, J.

A re-examination of the points involved in the present controversy which were considered and decided at a former hearing is productive of no different result or conclusion from that heretofore reached and announced in the opinion filed in the case. Ritchey v. Seeley, ante, p. 127. The precise point in controversy is whether under the facts stated in the former opinion this court has acquired jurisdiction over the cause and the parties to the controversy so that it may rightfully review the record and pass upon the alleged errors occurring at the trial in the court below. While a proceeding in error under our statute is not essentially the institution of a new and independent action, but rather a proceeding whereby the cause may be removed from the trial court to this court for the purpose of having reviewed alleged errors committed during the progress of the action in the court in which final judgment was rendered, yet, as has been stated by this and the courts of other jurisdictions: "The proceedings in this court are quite analogous to those in ordinary actions. The plaintiff in error is required, within the time limited by the statute, to file a petition showing his right to the relief demanded. He must bring his adversary into court in the usual way and affirmatively establish the material averments of his pleadings." Webster v. City of Hastings, 56 Neb. 245, 246, 76 N.W. 565, and the authorities therein cited. Repeated decisions of this court hold that in order to entitle an aggrieved party to a review of the record of the trial had in the district court, the requirements of the statute providing for a review by error proceedings must be complied with--that is, that the error proceedings must be begun within the time limited; that a petition in error must be filed in the reviewing court accompanied by a duly authenticated transcript of the record which it is sought to have reviewed as a basis for the obtaining of such review; that thereupon a summons in error may issue, and service be had, and the adverse party thus brought into court and subjected to its jurisdiction. It is argued that the waiver of summons in the present proceedings by the attorney of record in the lower court is equivalent to a service of summons on the attorney of record, and that the court has thereby acquired jurisdiction over the cause and the parties, and that such service is, on principle, within the rule announced in Link v. Reeves, 63 Neb. 424, 88 N.W. 670. It may, we think, be seriously doubted whether that part of section 585 of the Code of Civil Procedure wherein it is provided the defendant in error or his attorney may waive in writing the issuing and service of the summons in error can be construed to mean the attorney of record. While not agreeing entirely with the construction contended for, we are of the opinion that, even if accepted, the difficulties in the way of the plaintiff in error have not thereby been removed. It is more probable that the provision of the section referred to means just what it says; that is, that the defendant in error or his attorney at the time of the waiver, whether it be the attorney of record in the court below or another attorney employed for the purpose of defending the error proceedings, may waive the issuing and service of the summons in error. But it has been held, and we are not disposed to question the correctness of the ruling, that the provision of section 584 authorizing the service of summons in error on the attorney of record in the original case is of itself sufficient authority for such attorney to waive the issuance and service of summons. McDonald v. Penniston, 1 Neb. 324. Whichever may be the correct construction, it occurs to us that the crucial point in the present controversy is not whether the attorney of record may waive the issuance and service of summons, but what is the force and effect of the waiver as attempted to be made in the case at bar, and when, if at all, could it become effective? We have decided repeatedly that a summons in error can not issue until after the filing of a petition in error with a transcript of the record of the district court, and that these preliminary steps were necessary in order to give the court jurisdiction. City of Brownville v. Middleton, 1 Neb. 10; Benson v. Michael, 29 Neb. 131, 133, 45 N.W. 276; Garneau v. Omaha Printing Co., 42 Neb. 847, 849, 61 N.W. 100; Jandt v. Deranlieu, 43 Neb. 422, 423; Slobodisky v. Curtis, 58 Neb. 211, 212, 78 N.W. 522. If the rule announced in the decisions cited be a sound one, we think it must follow as a logical deduction therefrom that the waiver of the issuance and service of summons can not be of any force or effect even though executed by a defendant in error, or with full authority by his attorney or the attorney of record in the original case, until there has been filed in the reviewing court a petition in error with a duly authenticated transcript of the record which it is sought to have reviewed. This is the view entertained by the supreme court of Ohio in McGuire v. Ranney, 49 Ohio St. 372, 34 N.E. 719, and must, we think, be held to be correct. For the...