74 Neb. 811 | Neb. | 1905
This action was brought by the Adair County Bank, as plaintiff, against A. C. Forrey, C. C. Croffoot and D,. J. Fogarty in the county court of Douglas county, Nebraska, upon a promissory note made by Forrey and Croffoot, payable to Fogarty, or bearer, for $225, payable one year after date. Before maturity, Fogarty sold and indorsed the note to the Adair County Bank, and verbally waived demand, notice and protest. At the time the petition was filed, a summons was issued, directed to the sheriff of Douglas county, and was served personally upon Fogarty in that county. Fogarty was a resident of the state of Iowa, but was then present in Douglas county. On the same day, another summons-was issued for the defendants Forrey and Croffoot, directed to the sheriff of Nuckolls county, Nebraska. Forrey’ and Croffoot resided in the state of Kansas, near the city of Superior, Nebraska. No service was had upon this summons, and the same was returned,. The case was continued from time to time for service. On December 6, 1901, an alias summons was issued, directed to the sheriff of Nuckolls county, and was personally served, upon the defendant Croffoot in that county on January 4, 1902. Croffoot entered a special appearance in the county court of Douglas county, and objected to the jurisdiction of the court, which was over
The principal grounds relied upon by the defendant to establish the want of jurisdiction are: First, that he was a nonresident of this state, and Avas induced by fraud, to come into the state for the purpose of service of summons upon him; second, that since Fogarty was a nonresident of this state, he could not be properly sued in Douglas county so as to confer jurisdiction upon the court to issue an alias summons to Nuckolls county for service upon Croffoot in that county.
Sections 51 to 60, inclusive, title IY of the code, pro
We understand it to be conceded by the defendant in error that, if Fogarty had properly been served in Douglas county, a summons served upon Croffoot in Nuckolls county would give the court jurisdiction over his person if he were a resident of Nuckolls county; but it is argued that, since section 59 of the code provides that actions against a nonresident of this state may be brought in any county where said defendant may be found, the word “may” means “must,” of “shall,” and that therefore, an action against Croffoot must be brought in Nuckolls county, the county in which he was found, and that the county court of Douglas county never acquired jurisdiction
As to the objection to the jurisdiction that defendant was fraudulently induced to come within the county of Nuckolls in this-state for the purpose of service being made upon him, under the rule laid down in Hurlburt v. Palmer, 39 Neb. 158, this defense, as made, was for the jury to pass upon and not for the court. Further, it is asserted by the plaintiff in error that the district court sustained the motion to dismiss for want of jurisdiction upon the ground alone that a nonresident must be sued in the county where he is found, and the record, while ambiguous, seems to bear this out.
A large part of the brief of defendant in error has been devoted to the argument that Fogarty is not a defendant in good faith, and that his presence in Douglas county, so that summons might be served upon him, was collusive. But the answer does not ráise this issue, the allegation therein being merely that “Fogarty is not a bona fide resident of Douglas county, nor was he such resident at the time of the commencement of the action herein, or at any time thereafter,” etc. It is not contended by plaintiff in error that Fogarty ever was a resident of Douglas county, bona fide or otherwise. It is not charged in the answer that Fogarty’s presence in Douglas county was by collusion with the plaintiff, and hence this contention is outside of the issues. Upon the whole record we think the case should have been submitted to the jury.
We recommend that the judgment of the district court be reversed and the cause remanded for further proceedings.
By the Court: For the reasons stated in.the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for further proceedings.
Reversed.