86 Neb. 297 | Neb. | 1910
This action is prosecuted against the sheriff of Butler county to enjoin him from selling plaintiff’s real estate on execution. Plaintiff prevailed, and defendant appeals.
Walter Jackson, prior to 1889, executed two promissory notes maturing July 1, 1889, payable to William Deering & Company, or order. A contract of guarantee signed by plaintiff appears on the back of each note as follows: “For value received I hereby guarantee that the indebtedness mentioned in the within note, with interest at the rate agreed upon, will be paid by the maker thereof at maturity, and hereby consent that the time of payment thereof may be extended, or new note or security for the same debt taken, and this guarantee shall extend and apply thereto, hereby waiving protest, demand, and notice of nonpayment and necessity of suit against any party to this note, or any note taken in its place.” Ayres is credited with the payment of 50 cents June 13, 1894.
June 2, 1898, Deering & Company commenced an action in the county court of Hall county against Jackson and Ayres. In its petition plaintiff charged that the defendants made and delivered the notes. Copies, of the bills and of the guarantee are attached to the petition and made a part thereof. A summons was issued to the sheriff
1. Plaintiff contends that his joinder with Jackson in said suit was fraudulent and collusive; that the petition disclosed a several liability of the defendants on distinct and separate contracts; and that the court never acquired jurisdiction to render a judgment in that action against any one other than Jackson. Defendant asserts that the pleadings in the county court presented questions of fact and law which the judge necessarily determined when he issued a summons to Butler county, and that the judgment at most is erroneous, but not void. Defendant further urges that Ayres, by failing to present timely objections to the court’s jurisdiction, waived his privilege
The law is well settled that, in an action for a money judgment, a summons cannot be lawfully sent to a county other than the one wherein the litigation is pending, unless there is a joint demand against the nonresident defendant and the party summoned in the county where the suit is commenced. Barry v. Wachosky, 57 Neb. 534; Seiver v. Union P. R. Co., 68 Neb. 91; Stull Bros. v. Powell, 70 Neb. 152. Copies of the notes were attached to and made part of the petition. Ayres’ name does not appear as a maker or payee of either note, but his signature was written across the back of the instruments beneath technical words apt to charge him as guarantor, but not as maker or indorser. In Mowery v. Mast & Co., 9 Neb. 445, we held that the contract of the payee who indorses a note and the agreement of a mere guarantor that the bill should be paid are so distinct that a joint action cannot be maintained thereon. Weitz v. Wolfe, 28 Neb. 500, approves Mowery v. Mast & Co., supra. In Heard v. Dubuque County Bank, 8 Neb. 10, a distinction is made between a guarantee of payment indorsed by the payee upon a negotiable instrument and a like contract executed by a person not a party to the bill. It is suggested that the payee must have intended to transmit title by signing his name across the back of the note, and for
Ayres and Jackson were not by virtue of their contracts subject to a joint suit by Deering & Company. These contracts were referred to, and, in exact language by exhibits to the petition, made part of that pleading. Bank of Stockham v. Alter, 61 Neb. 359. In the light of the reported decisions of this court, counsel for Deering & Company must have known that Jackson and Ayres were not jointly liable to his client. The fact that he took a several judgment against the nonresident defendant upon return day indicates that he in truth was not contending for a joint liability. The judgment, it will be observed, is not upon the notes, but “upon the cause of. action set forth in plaintiffs petition.” Now, the only cause of action set forth in the petition against Ayres is upon his contract of guarantee, so that plaintiff was prosecuting two distinct and several causes of action against as many defendants, and the court purported to enter a separate-several judgment against the nonresident defendant upon the cause of action not pleaded as a liability of the resident defendant. Manifestly the county judge did not have power to render a valid judgment against Ayres in the circumstances of this case. Deering & Company is in no better plight than it would be if it had commenced a separate suit against Ayres and caused
2. It is argued that, conceding the judgment to be void, a court of equity will not enjoin its execution. The county judge’s record disclosed his lack of jurisdiction, and Ayres may enjoin collection of the judgment, especially so since it clouds his title to real estate. Predohl v. O’Sullivan, 59 Neb. 311; Fogg v. Ellis, 61 Neb. 829; Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722. We have not made specific mention of all points discussed in the well-written briefs filed on behalf of defendant, but they have been considered, and it is not
The judgment of the district court is
Affirmed.