75 Neb. 43 | Neb. | 1905
This is a proceeding in error to reverse a judgment of the district court for Douglas county for lack of jurisdiction. A summons Avas issued and served upon the defendants upon October 24, 1900, two days after its issuance. This summons Avas defective'in form as to the date of return day and ansAver day, making each of these dates one week earlier than the proper time. A special appearance was made by the defendants, objecting to the jurisdiction of the court for these reasons, which was sustained. Á rehearing Avas granted, and the objections to jurisdiction again sustained on January 19, 1901, but afterwards, on the same day, the presiding judge obliterated the entry upon his trial docket by drawing lines with his pen through the same. On the same day the plaintiff asked leave to amend the summons by inserting the proper dates. This motion was not acted upon until December 19, 1903, when objections to jurisdiction were filed by the defendants, reciting the former orders sustaining the objections previously filed. On January 2, 1904, the motion to amend the summons was sustained, and the special appearance and objection to jurisdiction was overruled. The defendants appeared no further, but announced they would stand upon their plea to the jurisdiction. Their default Avas then taken and judgment rendered against them.
The defendants complain that the judgment was rendered AAdthout jurisdiction, and that the court erred in overruling the objections to jurisdiction filed December 19, 1903. The objections that were made to the validity of the summons by the special appearance filed November 19, 1900, were properly sustained by the district court. The provisions of the statute fix the time for the return day of the summons and the answer day, and neither the district-court nor the clerk of the same has any poAver to change these dates. Crowell v. Galloway, 3 Neb. 215; Calkins v. Miller, 55 Neb. 603. This order was set aside, hoAvever,
The summons in this case was not void, but merely irregular, and; if no appearance had been made by defendant and a judgment rendered thereon, the judgment would be proof against collateral attack. 1 Freeman, Judgments (4th ed.), sec. 126; Gandy v. Jolly, 35 Neb. 711; Ley v. Pilger, 59 Neb. 561; Campbell Printing Press & Mfg. Co. v. Marder, Luse & Co., 50 Neb. 283; Jones v. Danforth, 71 Neb. 722. We have held that amendments to an affidavit for attachment may be properly permitted, even after a
Since the defendants were given proper personal service of the summons, and thus notified that an action was pending against them on AAdiich a sum certain thereupon indorsed was sought to be recovered, we see no reason why the amendment should not relate back to the time of the issuance of the summons so as to prevent the bar of the statute of limitations from falling.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.