Walker v. Lutz

• Decision Date: 22 March 1883
• Citation: 14 Neb. 274,15 N.W. 352
• Parties: WALKER v. LUTZ.
• Court: Nebraska Supreme Court

14 Neb. 274

15 N.W. 352

WALKER

v.LUTZ.

Supreme Court of Nebraska.

Filed March 22, 1883.

Error from York county.

W. P. Conner, for plaintiff.

C. B. France, for defendant.

LAKE, C. J.

There is but a single question here presented for our decision, and that is whether, in setting aside the service of summons, the district judge ruled correctly.

The record brought here is in a very incomplete state, and not in a condition to enable us to know, with any reasonable certainty, just what evidence the judge had before him and acted upon in making the order complained of. We know that he had the motion of the defendant suggesting the want of jurisdiction, together with certain affidavits attached to and made a part of it. These affidavits so attached as exhibits may, perhaps, be properly regarded as a part of the record without the aid of a formal bill of exceptions. But not so of a large number of affidavits filed on behalf of the plaintiff in support of the sheriff's service. They fall clearly within the rule frequently announced by this court, that affidavits used in the district court will not be considered by this court, in error proceedings, unless made a part of the record. And this can ordinarily be done only by means of a bill of exceptions. Ray v. Mason, 6 Neb. 101; Credit Foncier of America v. Rogers, 8 Neb. 34; Aultman v. Howe, 10 Neb. 8; [S. C. 4 N. W. REP. 357;] Oliver v. Sheeley, 11 Neb. 521; [S. C. 9 N. W. REP. 689.]

The record does show that, upon the entry of the order quashing the service, 40 days were given within which to prepare a bill of exceptions, which, however, does not appear to have been done. It follows from this condition of the record that we must presume the district judge ruled correctly upon the facts before him, and all that is left to us to decide is simply whether the sheriff's return to the summons, as to the fact of the defendant's residence, must be taken as conclusive or not.

The rule of the common law, by which such returns were held to be conclusive as between the parties to the action, has been much modified by many of the courts of this country, especially as to those jurisdictional facts not supposed to be within the officer's own knowledge, but which he must act upon--facts which not unfrequently he must ascertain upon inquiry from other persons, and about which he is quite liable to be misinformed entirely. To this class of facts belongs that of the “usual place of residence” of a defendant, the only place where, by leaving a copy, not with the defendant in person, the service of a summons can be effectuated.

Now is the first time that this court has been called upon to decide the...