State ex rel. Johnson v. Tautges, Rerat & Welch

• Decision Date: 05 October 1945
• Docket Number: 31953.
• Court: Nebraska Supreme Court
• Parties: STATE ex rel. JOHNSON, Atty. Gen., v. TAUTGES, RERAT & WELCH et al.

20 N.W.2d 232

146 Neb. 439

STATE ex rel. JOHNSON, Atty. Gen., v. TAUTGES, RERAT & WELCH et al.

No. 31953.

Supreme Court of Nebraska

October 5, 1945

Syllabus by the Court.

1. The common law is not immutable, but flexible, and by its own principles adapts itself to varying conditions.

2. The courts have the power to modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable.

3. A nonresident attorney who voluntarily, and in performance of his business as an attorney, comes into the state to conduct litigation on behalf of a client, is not privileged from service of summons.

4. Where the members of a copartnership reside in another state and are not within this state, service of summons upon the firm, as a firm, cannot be made in a county where it has no place of business.

Walter R. Johnson, Atty. Gen., H. Emerson Kokjer Deputy Atty. Gen., H. T. White, Sp. Asst. Atty. Gen., and John S. Samson, of Omaha, for appellant.

M L. Donovan, of Omaha, for appellees.

Before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, CHAPPELL and WENKE, JJ.

MESSMORE Justice.

This is an appeal from the ruling of the district court on two special appearances, objecting to the jurisdiction of the court. The respondents prevailed when the special appearances were sustained. From this ruling, the relator appeals.

On May 8 1944, the relator filed his petition and named therein, among others Tauges, (correct name Tautges) Rerat & Welch, a copartnership. The petition alleged that the respondents, William A. Tautges, Eugene A. Rerat and Walter J. Welch are each practicing attorneys engaged in the practice of law, maintaining their offices in Minneapolis, Minnesota, under and by the partnership name of Tautges, Rerat & Welch, and in their individual persons and as such copartners are made respondents; that these three defendants engaged other defendants (which are named in the petition but are not parties to this suit) to solicit personal injury suits against railroad and transportation companies within this state, for the purpose of bringing suits against such companies without the state, in violation of sections 28-739 and 28-740, R.S.1943; that the practice indulged in by the respondents is in violation of the laws of this state, detrimental to the general public welfare and morale of the people of this state, and tends to bring the administration of justice in this state into ridicule and disrepute; and prayed the issuance of an injunction.

On May 8, 1944, summons was issued and return made on the same day, showing service on Tautges, Rerat & Welch as a copartnership, by delivering to William A. Tautges, one of the copartners who was in charge of such at the usual place of doing business of such copartnership in Douglas County, Nebraska, personally, in said county, a due and certified copy of the writ with all endorsements thereon. On the same day the writ discloses that a summons was served personally on William A. Tautges, by delivering a true and certified copy with all endorsements thereon, to him in Douglas county.

On June 12, 1944, special appearance of respondent designated as Tautges, Rerat & Welch, a copartnership, was filed, objecting to the jurisdiction of the court over the person of defendant, for the reason that the relator undertook to secure service of process upon this defendant in Douglas county, Nebraska, by delivering summons to William A. Tautges, as one of the copartners who was in charge of the office at the usual place of doing business of such copartnership in Douglas county, Nebraska, personally, in said county, whereas in truth and in fact, the said defendant did not at said time nor at any other time, maintain an office in Douglas county, Nebraska; that at the time of attempting service of summons upon said defendant by delivering a copy of summons to William A. Tautges, he was a resident and citizen of Minnesota and had come into the jurisdiction of the Nebraska court as an attorney at law for the sole and only purpose of representing a litigant in the trial of a lawsuit, and at the time of delivery of copy of summons to him, he was in the courtroom where the lawsuit was being tried and was actually engaged in the trial; that the defendant, as a copartnership, is immune from service of process.

On the same day a special appearance was filed in behalf of the defendant William A. Tautges, setting forth that the relator undertook to secure service of process upon such defendant individually, by causing to be delivered to him in the courtroom of Honorable James M. Fitzgerald, one of the judges of the district court, while the respondent was engaged in representing a litigant in the trial of a lawsuit, and at the time of the attempted service of summons upon the respondent he was a resident and citizen of Minnesota and had come into the jurisdiction of the Nebraska court as an attorney, for the sole and only purpose as heretofore stated. For the reason given, it was claimed that the respondent was immune from service of process at the time.

An affidavit of the respondent Tautges, discloses that he is a citizen of Minnesota, resident of the city of Minneapolis, and has maintained a law office in that place since March 15, 1907, and since January 1, 1944, has occupied a law office at 800 Foshay Tower in Minneapolis; that on May 8, 1944, there was pending in the district court for the fourth judicial district of Douglas county, Nebraska, an action in which he represented the plaintiff as an attorney; that he left Minneapolis, Minnesota, for Omaha, May 5, 1944, arriving at the latter city May 6, 1944, solely in his capacity as attorney for the plaintiff in a lawsuit to be tried in the district court for Douglas county, at Omaha, and for the purpose of additional preparation for trial of the case. The trial concluded on May 15, 1944, and he departed from Omaha on the first available passenger train, May 16, 1944; that on May 8, 1944, at approximately 4:30 o'clock p.m., while he was in courtroom No. 3 in Douglas county, and after the adjournment of the court, and while still engaged in consultation with the plaintiff and his cocounsel, he was served with the summonses as heretofore set out. The affidavit further recites that Tautges, Rerat & Welch are not a copartnership, but there exists an office association under such name, and that no office was ever maintained as a place of business within the state of Nebraska.

A supplemental affidavit discloses that William A. Tautges was admitted and authorized to practice in the district court in Nebraska for the purpose of trial and proceedings in the case then before the court, in which he was counsel.

The relator contends that the trial court erred in sustaining the special appearance of William A. Tautges, and in holding that an attorney from another state, while in the state of Nebraska for the purpose of trying a case pending in this state, was immune and exempt from service of civil process. This question has not been previously determined by this court.

In approaching a solution of the question thus presented, our attention is directed by the respondent to section 49-101, R.S.1943, as follows: 'So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the Legislature of this state, is adopted and declared to be law within the State of Nebraska.'

In determining the applicability of the foregoing statute to rules of common law and as they may be applied in this state, this court in Kerner v. McDonald, 60 Neb. 663, 84 N.W. 92, 83 Am.St.Rep. 550, said: 'Many principles of law have changed with the passing of time, through the gradual change of thought on the part of society and the flux and change of social organization; many others have ceased because the reason which called them into existence has ceased, * * *.'

In the City of Lincoln v. Ricketts, 8 Cir., 84 F.2d 795, 796, the court held: 'Common law is not fixed and immutable like statute law, but is flexible and adapted to meet new or unexpected conditions.' In the body of the opinion it is said: 'It will be noted that the Supreme Court of Nebraska, in construing the statute of that state adopting the common law of England, has declared * * * that this common law is in force only so far as applicable to conditions and surroundings and not inconsistent with the Constitution of the United States, the Constitution of Nebraska, or legislative enactments, passed or to be passed.' See Farmers & Merchants Ins. Co. v. Jensen, 58 Neb. 522, 78 N.W. 1054, 44 L.R.A. 861; Bloomfield State Bank v. Miller, 55 Neb. 243, 75 N.W. 569, 44 L.R.A. 387, 70 Am.St.Rep. 381.

The foregoing are in keeping with Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 216, 78 L.Ed. 369, 93 A.L.R. 1136: 'The common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.' See 11 Am.Jur. § 2, p. 153.

The courts have the power to modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable. 11 Am.Jur. 162, § 7, note 18, and cases cited therein. See, also, Annotations: 56 A.L.R. 277, 86 A.L.R. 475.

It is apparent that under the foregoing authorities, that by adoption of the common law, as provided for by section 49-101, R.S.1943, supra, does not imply that all of the common-law rules are strictly in force in this state, but are subject to the conditions and modifications as reflected in the authorities cited.

In furtherance of a reason for the soundness of such authorities: 'The common law by its own principles adapted itself to varying...