Stelling v. Peddicord

• Decision Date: 18 April 1907
• Docket Number: 14,654
• Parties: GEORGE STELLING, APPELLEE, v. WILLIAM N. PEDDICORD ET AL., APPELLEES; MCBRAYER BROTHERS, APPELLANTS
• Court: Nebraska Supreme Court

111 N.W. 793

78 Neb. 779

GEORGE STELLING, APPELLEE, v. WILLIAM N. PEDDICORD ET AL., APPELLEES;

MCBRAYER BROTHERS, APPELLANTS

No. 14,654

Supreme Court of Nebraska

April 18, 1907

APPEAL from the district court for Franklin county: ED L. ADAMS JUDGE. Reversed.

REVERSED.

Hairgrove & Stubbs and F. H. Stubbs, for appellants.

G. M Caster, contra.

ALBERT C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

George Stelling brought an action against McBrayer Brothers, a copartnership, whose members reside and whose principal place of business is in another state, to recover the price paid for a horse, on the ground of a failure of warranty. There were other parties defendant, but as they are now out of the case we shall use the word defendant to designate the copartnership. The return of the sheriff shows that the summons was served on the partnership "by delivering to W. H. Chaney, their authorized agent in buying horses and mules, at W. H. Chaney's place of residence in Franklin county, Nebraska, a true and certified copy of the summons." The defendant entered a special appearance, objecting to the jurisdiction of the court on two grounds: (1) That the return of the sheriff did not show that service of summons was made upon the clerk or general agent of the defendant at its usual place of doing business in said county; (2) that the defendant is a nonresident of the state of Nebraska, and had no office or place of business in said county. A hearing was had on the special appearance, and a large amount of testimony was taken on the question whether the defendant had an agent and place of doing business in Franklin county. The special appearance was overruled, whereupon the defendant filed an answer which, in addition to a plea to the merits, included a plea to the jurisdiction of the court, based on the objections urged in its special appearance. A trial was had, wherein not only the issues raised by the plea to the merits, but those raised by the plea to the jurisdiction of the court, were litigated. A general verdict was returned in favor of the plaintiff, and from a judgment rendered thereon the defendant appeals.

The first objection to the jurisdiction of the court relates merely to a defect or irregularity in the service of the summons, and was properly brought to the attention of the court by the defendant's special appearance. Baker v. Union Stock Yards Nat. Bank, 63 Neb. 801, 89 N.W. 269. But if the defendant intended to rely on that objection it should have got out of court when the special appearance was overruled, because by filing an answer and asking an adjudication on the merits it waived the defect in the service shown by the return of the sheriff. Baker v. Union Stock Yards Nat. Bank, supra. Nothing was gained by including this objection with a plea to the merits, because it is well settled that, where an objection of this kind is brought to the attention of the court by special appearance, and the defendant goes further and enters a general appearance, or invokes the powers of the court for any other purpose, such defects in the service are waived. Baker v. Union Stock Yards Nat. Bank, supra. This rule is reasonable. The only object of the service of original process is to give the defendant an opportunity to make a defense, and after a defendant has appeared in a cause, and made his defense on the merits, it would be absurd to withhold an adjudication on the ground that the notice giving him an opportunity to make his...