Walker v. Stevens
| Citation | 72 N.W. 1038,52 Neb. 653 |
| Decision Date | 18 November 1897 |
| Docket Number | 7551 |
| Parties | JOHN B. WALKER v. SARAH E. STEVENS, ADMINISTRATRIX |
| Court | Nebraska Supreme Court |
ERROR from the district court of Frontier county. Tried below before WELTY, J. Affirmed.
AFFIRMED.
C. W McNamar, for plaintiff in error.
Greene & Hostetler, contra.
On November 29, 1893, Sarah E. Stevens, as administratrix of the estate of George P. Stevens, brought this suit in the district court of Frontier county to recover damages for the deliberate and malicious killing of plaintiff's intestate by the defendant. The defendant made a special appearance in the court below, objecting to the jurisdiction of the court over his person, which was overruled, and from a judgment against him in the sum of $ 5,000 he prosecutes an error proceeding to this court.
A single question is argued upon the record, which is, whether the court below acquired jurisdiction over the person of the defendant. He made no general appearance in the cause. Two summonses were issued,--one on November 29, 1893, directed to the sheriff of Dawson county, and the other on December 2, 1893, to the sheriff of Frontier county. The former was served upon the defendant personally while he was confined in the jail of Dawson county for murder, and the other writ was returned by the sheriff of Frontier county indorsed served on December 7, 1893, by leaving a true and certified copy, with all the indorsements thereon, at the defendant's usual place of residence. Under section 60 of the Code of Civil Procedure this action could be brought alone in the county where the defendant resided or could be summoned. Section 65 declares: "Where the action is rightly brought in any county, according to the provisions of title four, a summons shall be issued to any other county against any one or more of the defendants, at the plaintiff's request." Under said section a summons in an action in personam cannot be issued to a county of the state, other than the one in which the suit is brought, to bring in a party, unless service of summons can be and is properly made in the county where the cause is pending, upon a co-defendant who has a substantial and actual interest in the litigation adverse to the plaintiff. This court in Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229 held that said section 65 does not apply where the person served in the county is merely a nominal defendant. By a parity of reasoning the statute confers no authority to issue a summons in a personal action to a county other than the one in which the suit was instituted, where there is only one defendant. Manifestly said section 65 is not susceptible of any other construction. (Cobbey v. Wright, 23 Neb. 250, 36 N.W. 505.) It follows that the summons issued to Dawson county was void, and no jurisdiction over the person of the defendant was acquired by the service of the same upon him.
It is suggested that the summons directed to the sheriff of Frontier county is invalid, because the same was issued without an order of the court to that effect, and prior to the returning of the writ issued to Dawson county. Section 67 of the Code of Civil Procedure declares: "When a writ is returned 'not summoned,' other writs may be issued until the defendant or defendants shall be summoned; and when defendants reside in different counties, writs may be issued to such counties at the same time." The provisions of this section were under consideration in Ensign v. Roggencamp, 13 Neb. 30, 12 N.W. 811, where it was decided that an alias summons should not issue until the first writ has been returned "not summoned," except upon an order of the court, but if issued without such return or order, the proceedings are not thereby rendered void, and a judgment entered by default against the defendant upon whom the writ was duly served is at most error without prejudice. Said section is applicable alone where the summons first issued is valid, and manifestly cannot be invoked in a case like this, where the prior writ from the inception was absolutely void and without any binding force and effect whatsoever, the same having been...
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