S. & C. Mayer v. Nelson

• Decision Date: 08 April 1898
• Docket Number: 7940
• Citation: 74 N.W. 841,54 Neb. 434
• Parties: S. & C. MAYER ET AL. v. JOHN E. NELSON
• Court: Nebraska Supreme Court

74 N.W. 841

54 Neb. 434

S. & C. MAYER ET AL. v. JOHN E. NELSON

No. 7940

Supreme Court of Nebraska

April 8, 1898

ERROR from the district court of Phelps county. Tried below before BEALL, J. Reversed.

REVERSED AND DISMISSED.

J. C McNerney and Alexander Altschuler, for plaintiffs in error.

Hall St. Clair & Roberts and Stewart & Munger, contra.

OPINION

NORVAL, J.

This action was instituted in the district court of Phelps county by John E. Nelson to enjoin a judgment recovered against him by S. & C. Mayer before a justice of the peace of Lancaster county. On the final hearing a decree was entered for the plaintiff as prayed, and the defendants prosecute a petition in error.

The sole ground upon which relief was sought is that the judgment of the justice was void for want of jurisdiction over the person of the defendant therein. The facts, as gathered from the pleadings and evidence, are these: Nelson was a resident of Phelps county, and on January 5, 1894, he was served therein with a subpoena to appear on the day following as a witness before the county court of Lancaster county in a cause pending therein wherein Dean & Horton were plaintiffs and Sheldon and others were defendants; that Nelson, in obedience to the commands of the writ, went to Lancaster county on January 6 for the purpose of becoming a witness in said suit, and while there the justice's summons was served personally upon him on said date; that on the return day of the summons he made a special appearance before the justice and objected to the jurisdiction of the court over his person, on the ground that he was not liable to be served with civil process in Lancaster county while in attendance upon court as a witness, which objection was overruled, and Nelson neither by himself nor attorney made any further appearance in the cause, and the judgment sought to be enjoined was rendered against him; that a transcript thereof was filed and docketed in the district court of Lancaster county, and a certified transcript of the same from said court was lodged in the office of the clerk of the district court of Phelps county, upon which an execution was issued and placed in the hands of the sheriff for service.

Undoubtedly Nelson was privileged from being served with summons in Lancaster county while in attendance as a witness before any of the courts of that county, and the justice should have sustained his objection to jurisdiction over his person (Palmer v. Rowan, 21 Neb. 452, 32 N.W. 210); but it was a privilege or immunity which he might have waived (Woods v. Davis, 34 N.H. 328; Stewart v Howard, 15 Barb. [N.Y.] 26; Washburn v. Phelps, 24 Vt. 506; Randall v. Crandall, 6 Hill [N.Y.] 342). The judgment rendered on such service of process was not void. It was merely erroneous. But the defect is not available in a collateral proceeding. The case of Hamilton v. Millhouse, 46 Iowa 74, cited by plaintiff below, does not conflict with our view. The Code of Iowa provides that the jurisdiction of a justice of the peace does not embrace actions for the recovery of money against actual residents of any other county. That case holds that a justice cannot in such an action acquire jurisdiction over a non-resident defendant, though he may be served with process in the...