Templin v. Kimsey

• Decision Date: 05 October 1905
• Parties: TEMPLIN v. KIMSEY.
• Court: Nebraska Supreme Court

74 Neb. 614

105 N.W. 89

TEMPLIN

v.KIMSEY.

Supreme Court of Nebraska.

Oct. 5, 1905.

Syllabus by the Court.

Where the want of jurisdiction does not appear upon the face of the record, it may be pleaded with other defenses in the answer.

That the defendant in a case of that kind first raised the question of jurisdiction on a especial appearance, which was overruled, does not affect his right to include a plea to the jurisdiction with other defenses in his answer.

Commissioners' Opinion. Department No. 2. Error to District Court, Lancaster County; Frost, Judge.

Action by Georgia Kimsey against J. W. Templin. There was judgment for plaintiff, and defendant brings error. Reversed.Tibbets & Anderson, for plaintiff in error.

Geo. A. Adams, for defendant in error.

ALBERT, C.

This suit was brought before a justice of the peace of Lancaster county. The return to the summons is regular on its face, and shows that service was made on the defendant by leaving a copy at his usual place of residence in said county. On the return day the defendant entered a special appearance, objecting to the jurisdiction of the court on the ground that he was a resident of Merrick county, and had no place of residence in Lancaster county at the time the summons purports to have been served. The objection was overruled, and the defendant entered no further appearance at that time. The justice gave judgment in favor of the plaintiff, and within 10 days thereafter the defendant appeared before the justice, paid the costs, and asked to have the judgment set aside, in pursuance of the provisions of section 1001 of the Civil Code, relating to the setting aside of judgments taken by default before a justice of the peace, at the same time filing an answer, containing, among other things, a plea to the jurisdiction of the justice, based on the same ground as that urged in his special appearance. The justice set aside the judgment, and upon the hearing of the case gave judgment in favor of the defendant. The plaintiff appealed to the district court, where the defendant, among other defenses, again entered a plea to the jurisdiction of the court. On plaintiff's motion this plea was stricken from the answer, and upon a trial on the merits the jury found for the plaintiff, and the court gave judgment accordingly.

The sole question in the case arises on the ruling of the court on the plaintiff's motion to strike the plea to the jurisdiction of the court from the answer. The plaintiff contends that, when the defendant appeared before the justice for the purpose of having the judgment set aside, he submitted himself to the jurisdiction of the court, and waived the want of due service of process. In urging this proposition, there is a failure to distinguish between those cases where the want of service or some defect or irregularity therein...