Walker v. Stevens
| Citation | 72 N.W. 1038,52 Neb. 653 |
| Parties | WALKER v. STEVENS. |
| Decision Date | 18 November 1897 |
| Court | Supreme Court of Nebraska |
1. In a personal action having but one defendant, a summons issued to a county other than the one to which the suit was brought, and served upon him therein, is void, and confers no jurisdiction over the person of the defendant.
2. When a void summons is issued, another writ may issue, without either an order of the court, or the return of the first “Not summoned.”
3. The return of a sheriff to a summons, that he served the same by leaving a copy at the usual place of residence of the defendant, while not conclusive as to residence, is prima facie evidence of such fact.
4. W., a single man, having a legal home and domicile in F. county, was arrested at his said residence for a felony committed in D. county, to which county he was conveyed, and committed to the jail thereof pending trial. While thus imprisoned he was sued in F. county, and the summons was served by leaving a copy at his usual place of residence in said county. Held, that the court thereby acquired jurisdiction over the person of the defendant.
Error to district court, Frontier county; Welty, Judge.
Action by Sarah E. Stevens, as administratrix of the estate of George P. Stevens, against John B. Walker, for the malicious killing of plaintiff's intestate. From a judgment for plaintiff, defendant brings error. Affirmed.C. W. McNamar, for plaintiff in error.
Greene & Hostetler, for defendant in error.
On the 29th day of November, 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 error proceedings 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 as 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,...
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