Webster v. City of Hastings

• Decision Date: 05 October 1898
• Docket Number: 9901
• Citation: 76 N.W. 565,56 Neb. 245
• Parties: JOSEPH R. WEBSTER, ADMINISTRATOR, v. CITY OF HASTINGS
• Court: Nebraska Supreme Court

76 N.W. 565

56 Neb. 245

JOSEPH R. WEBSTER, ADMINISTRATOR, v. CITY OF HASTINGS

No. 9901

Supreme Court of Nebraska

October 5, 1898

ERROR from the district court of Kearney county. Tried below before BEALL, J. Heard on motion of defendant to quash the summons in error. Motion overruled.

MOTION DENIED.

L. J Capps and Tibbets Bros., Morey & Ferris, for the motion.

Joseph R. Webster, Halleck F. Rose, J. L. McPheely, B. F. Smith, and Ed L. Adams, contra.

SULLIVAN J. RAGAN, C., not sitting.

OPINION

SULLIVAN, J.

In an action grounded on negligence, brought by Jefferson H Foxworthy against the city of Hastings, the defendant had judgment in its favor in the district court of Kearney county on May 20, 1897. In the following October, Foxworthy died intestate and Joseph R. Webster, the plaintiff in error, was appointed and has qualified as administrator of his estate. These facts are shown by the petition in error filed by Webster in this court on February 17, 1898. The defendant moves to quash the summons in error on the ground that the administrator cannot prosecute error in this court without having first obtained an order of the district court reviving the action in his name. It will be conceded that the administrator could take no steps in the original action in the district court without being made a party thereto in the manner provided by the statute; but at the time he entered upon the execution of his trust the cause had passed to judgment; the action in the lower court was ended. The filing of the petition in error and the issuance and service of the summons to which this motion is addressed were the commencement of a new action, having for its object the reversal of a judgment which the administrator claims illegally obstructs him in the collection of money due to him in his representative capacity from the defendant in error. The proceedings in this court are quite analogous to those in ordinary actions. The plaintiff in error is required, within the time limited by the statute, to file a petition showing his right to the relief demanded. He must bring his adversary into court in the usual way and affirmatively establish the material averments of his pleading.

The courts in other jurisdictions have generally regarded the writ of error as a new action. An Illinois statute requiring the dismissal of every suit at law or in equity whenever commenced by a non-resident without filing security for costs was held...