South Omaha Nat. Bank v. Farmers' & Merchants' Nat. Bank
| Decision Date | 01 May 1895 |
| Docket Number | 6271 |
| Citation | 63 N.W. 128,45 Neb. 29 |
| Parties | SOUTH OMAHA NATIONAL BANK v. FARMERS & MERCHANTS NATIONAL BANK OF FREMONT, NEBRASKA, ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before SCOTT, J.
AFFIRMED.
Charles Offutt, for plaintiff in error:
The motion filed by the garnishee constituted a general appearance and a waiver of its objections to jurisdiction. (Porter v. Chicago & N. W. R. Co., 1 Neb. 14; Aultman v. Steinan, 8 Neb. 109; Klopp v Water-Works Co., 34 Neb. 808; Bucklin v Strickler, 32 Neb. 602; Whitney v. Lehmer, 26 Ind. 503; Peck v. Barnum, 24 Vt. 75; Reed v Fletcher, 24 Neb. 451.)
The district court of Douglas county acquired jurisdiction by the issuance of the order of attachment to Dodge county. The ancillary action of attachment was thus brought in Dodge county, and the garnishee was properly served there.
E. F. Gray and D. B. Carey, contra, cited: Mathews v. Smith, 13 Neb. 178; Stevens v. Dillman, 86 Ill. 233.
The opinion contains a statement of the case.
The plaintiff in error brought this action in the district court of Douglas county against George W. E. Dorsey, Hamilton H Dorsey, and Jesse M. Marsh, individually and as partners doing business under the firm name of Dorsey Bros. & Co., to recover on a promissory note for $ 8,000. Attachments were issued directed to the sheriffs of Douglas, Saunders, and Dodge counties. Subsequently to the commencement of the action an affidavit for garnishment in the following form was filed:
On this affidavit an order of garnishment in the usual form was issued, directed to the sheriff of Dodge county, and a notice of garnishment served on the Farmers & Merchants National Bank, directing it to appear in the district court of Douglas county, on a day named in the writ and answer. Instead of answering, the bank appeared by the following motion: This motion was sustained, and the garnishee discharged; from the order thus made the plaintiff prosecutes error.
Two questions are presented by these proceedings. The first is whether the motion filed by the garnishee constituted a general appearance and waived jurisdictional defects; second, whether, if the appearance of the garnishee did not waive defects, an order of garnishment can be issued to a county other than that in which the action against the debtor is pending?
We do not think that the motion filed by the garnishee constituted a general appearance or estopped it from urging that it was not properly brought before the court. The argument is, that the motion is too broad; that it does not purport to be a special appearance, and that by stating that the garnishee does not reside in Douglas county, it presents an issue not necessary to the question of jurisdiction. On the latter point it is sufficient to say that the pleader was merely stating the grounds upon which his motion was based; that by injecting the element of residence he was not calling upon the court for any affirmative action. The motion alleged that the garnishment was invalid; first, because the bank did not reside in Douglas county, and second, because it was not within Douglas county. If the bank gave one good reason for holding the garnishment invalid, the fact that it gave another reason which might not be good, and which was unnecessary, would not affect the merits of the motion; nor do we think that the appearance was made general by the failure to designate it as special. At the common law, pleadings had formal parts, and were determined rather according to their form than their substance. By the Code, formal pleadings do not exist, and the substance alone is looked to; therefore, if this motion was, in its substance, a special appearance, the plaintiff's contention must fail. An examination discloses that the object of the motion was merely to quash the notice of garnishment. It went solely to the question of jurisdiction, and did not invoke the power of the court on any question except that of jurisdiction. This, we think, is what distinguishes a special from a general appearance. In Porter v. Chicago & N. W. R. Co., 1 Neb. 14, it was said by MASON, C. J., that a defendant may appear specially to object to the jurisdiction of the court, but if he seeks to bring its powers into action excepting on a question of jurisdiction, he will be deemed to appear generally. The same language was issued by LAKE, C. J., in Crowell v. Galloway, 3 Neb. 215. The same principle was applied in Aultman v. Steinan, 8 Neb. 109, and an appearance held general, because a motion was made to dismiss the case for reasons held not to affect the jurisdiction of the court. This was also the ruling of the court in Cropsey v. Wiggenhorn, 3 Neb. 108, and in Bucklin v. Strickler, 32 Neb. 602, 49 N.W. 371. See, also, on this question a review of the cases in Hurlburt v. Palmer, 39 Neb. 158, 57 N.W. 1019. The reason and the doctrine of all the cases is that an appearance is special when it is confined to an attack upon the jurisdiction, but that it becomes a general appearance whenever the power of the court is invoked on any other question.
We now come to the merits of the motion. It is familiar law that process of attachment and garnishment is solely the...
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S. Omaha Nat. Bank v. Farmers' & Merchants' Nat. Bank of Fremont
... ... Under our Code, an order of garnishment cannot be issued to a county other than that in which the principal action is brought.Error to district court, Douglas county; Scott, Judge.Action by the South Omaha National Bank against George W. E. Dorsey and others, defendants, and the Farmers' & Merchants' National Bank of Fremont, garnishee. From an order discharging the garnishee, plaintiff brings error. Affirmed.[63 N.W. 128]Chas. Offutt, for plaintiff in error.E. F. Gray and D. B. Carey, for ... ...