Seiver v. Union Pacific Railroad Company

• Citation: 93 N.W. 943,68 Neb. 91
• Decision Date: 04 March 1903
• Docket Number: 12,726
• Parties: GEORGE W. SEIVER, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLEE, IMPLEADED WITH GEORGE MILTONBURGER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

93 N.W. 943

68 Neb. 91

GEORGE W. SEIVER, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLEE, IMPLEADED WITH GEORGE MILTONBURGER ET AL., APPELLANTS

No. 12,726

Supreme Court of Nebraska

March 4, 1903

APPEAL from the district court for Sarpy county: GUY R. C. READ DISTRICT JUDGE. Judgment for plaintiff. Affirmed.

Affirmed.

W. J Courtwright and S. S. Sidner, for appellants.

H. Z Wedgwood, for appellee Seiver.

John N. Baldwin and Edson Rich, for appellee, Union Pacific Railroad Company.

BARNES, C. OLDHAM and POUND, CC., concur.

OPINION

BARNES, C.

This was a suit in equity, in which George W. Seiver was plaintiff and the Union Pacific Railroad Company, George Miltonburger and Walter Miltonburger were defendants. The trial resulted in a decree enjoining the Miltonburgers from suing out or prosecuting any further or other proceedings in garnishment against the said Seiver, and at the same time the Union Pacific Railroad Company was restrained and enjoined from answering any such further or other proceedings, and from paying the wages which it owed to Seiver into court thereon, or to any one except him, on the ground that such wages were absolutely exempt to him from execution or proceedings in garnishment. From that decree the Miltonburgers bring the case here on appeal.

It appears that the appellants obtained a judgment before a justice of the peace at North Bend, in Dodge county, Nebraska, against the appellee and another, on a claim for damages caused by the breaking of a buggy; that appellee was a married man, the head of a family and resided at Papillion, Sarpy county, Nebraska, and was employed by the Union Pacific Railroad Company as its station agent at that place when the action was commenced; that appellants resided in Dodge county, and that they sued out garnishment proceedings against the appellee before the justice of the peace in that county and served the writ, or notice, on the Union Pacific Railroad Company, requiring it to answer in said court and pay over the wages due appellee, if any, in satisfaction of the judgment; that appellee employed an attorney, who went to Dodge county and successfully defended against the proceedings, and the garnishee was discharged; that within a month thereafter the Union Pacific Railroad Company was again served with garnishee process, and appellee was again required to and did employ an attorney to go to North Bend and defend against the proceedings, in order to save his exempt wages for the support of his family; that, on the appearance of appellee's attorney therein, the second proceeding was dismissed for want of prosecution; that within thirty days thereafter a third writ in garnishment was sued out by appellants and served on the Union Pacific Railroad Company, and said company then notified appellee that something must be done, or it would be necessary for it to, and that it would, pay over the wages then due him into court. In order to protect his right to the said wages, which were absolutely exempt to him, and to prevent a further multiplicity of suits and save himself from further trouble, annoyance and expense, appellee commenced this action in the district court of Sarpy county, where he resided, against the Union Pacific Railroad Company and the appellants, setting up the foregoing facts in his petition and praying for the relief which was decreed to him as aforesaid. The company was duly served with a summons in Sarpy county and thereupon a summons was issued to the sheriff of Dodge county and was served on the appellants. The railroad company defaulted, and thus, on its part, confessed all of the allegations of the petition to be true. Appellants appeared specially and objected to the jurisdiction of the court for the reason that the railroad company was only a nominal party, was improperly joined with them as a defendant in the suit, and that therefore the court obtained no jurisdiction over them. The same objection to the jurisdiction of the court was pleaded in their answers, and, while the court did not specifically rule thereon, still the objection was in effect overruled by retaining the action for trial, in trying the same and rendering its decree for the appellee herein. On the trial the appellee introduced his evidence, the Union Pacific Railroad Company by its default confessed the allegations of the petition as to it to be true, and the court so found, while the appellants introduced no evidence to contradict the allegations of the petition or rebut the evidence introduced by the appellee. Therefore the sole question for our consideration is one of jurisdiction.

It must be conceded that the decree, so far as the railroad company is concerned, is a proper one, and if the court had jurisdiction of the persons of the appellants, then the judgment is just and equitable as to them and must be affirmed. The facts pleaded and proved by the appellee surely call for the interposition of a court of equity, and demand the relief prayed for. It can not be successfully asserted that the appellee had an adequate remedy at law in this case. The court found that his wages, sought to be subjected by the proceedings complained of to the payment of the judgment, were absolutely exempt to him by law. The appellants knew this as well as he did, and yet, by a series of garnishment proceedings, amounting to a persecution in this case, they sought to compel him to pay the judgment out of such exempt money, or expend it all in protecting his legal right thereto. Not only this, but they evidently sought to annoy and harass his employer until he must pay, or perhaps lose his employment. Again, it may be fairly assumed that by suing out a number of writs of garnishment appellee would at some time be unable to protect his rights, or the company would inadvertently default, and an order would thereupon be obtained which would result in compelling it to pay the money into court, leaving it still liable to pay the wages to appellee, or perhaps altogether deprive him thereof. Against such iniquitous proceedings there is no adequate remedy at law, and such practices should receive our severest condemnation. When the property of a debtor is exempt he is entitled to the possession of it, and should be protected in this possession in the most expedient manner. Cunningham v. Conway, 25 Neb. 615, 617, 41 N.W. 452; Johnson v. Hahn, 4 Neb. 139, 149. Appellee was entitled to the decree to save him from being harassed by a multiplicity of suits. Johnson v. Hahn, supra; Uhl v. May, 5 Neb. 157, 161; Normand v. Otoe County, 8 Neb. 18, 21; Touzalin v. City of Omaha, 25 Neb. 817, 824, 41 N.W. 796; Schock v. Falls City, 31 Neb. 599, 605, 48 N.W. 468; Morris v. Merrell, 44 Neb. 423, 430, 62 N.W. 865.

This brings us to the consideration of the question of jurisdiction. Section 65 of our Code of Civil Procedure provides that "Where the action is rightly brought in any county, according to the provisions of title four, a summons shall be issued to any other county, against any one or more of the defendants, at plaintiff's request." Title IV (secs. 51-61b), after designating the actions which must be brought in a certain specified...