57 Neb. 534 | Neb. | 1899
James M. Barry, J. M. Brannan, and O. D. Eyan made tlieir promissory note for $500, and delivered tlie same to one D. P. Clarke. The note veas payable to Clarke only. It was non-negotiable. Before the note matured Clarke seems to have sold it to Michael Wachosky. At any rate he wrote his name across the back of the note, and over that he recited in writing that he guarantied the payment of the note, and delivered it to Wachosky. The latter, in the county court of Douglas county, brought a suit against Clarke, Barry, Brannan, and Eyan and set out in his petition the execution and delivery of the note by the makers thereof to Clarke, and then that Clarke wrote his name on the back of the note, and wrote over his name his contract guarantying the payment of the note, and delivered it to him, 'Wachosky. Clarke resided and was summoned in Douglas county. The makers of the note were found and summoned in Dakota county. The makers of the note, on being brought into the county court, appeared specially and objected to the jurisdiction of the court over them, upon the grounds that they were found and summoned in Dakota county, where they resided, and that Clarke was summoned in Douglas county. This objection of the makers to the jurisdiction oh the county court over them was by it overruled. The makers of the note then answered to the merits of Wachosky’s petition, and interposed as a defense to the court’s jurisdiction the fact that they were residents of and found and summoned only in Dakota county, Wachosky, by
1. The plaintiffs in error adopted the proper practice to raise the question of the court’s jurisdiction over them. (Hurlburt v. Palmer, 39 Neb. 158; Anheuser-Busch Brewing Ass’n v. Peterson, 41 Neb. 897; Lowe v. Riley, 57 Neb. 252.) The court having overruled the objections of the plaintiffs in error to the court’s jurisdiction over them, they properly set up the facts of their being residents of and summoned only in Dakota county as one of the defenses of their answer, and by so doing did not waive the question of jurisdiction, though in the same answer they pleaded generally to the merits of the plaintiffs’ case.
2. Section 60 of the Code of Civil Procedure provides, in substance, that every action not otherwise specifically provided for must be brought in the county in -which the ■ defendant, or some one of the defendants, resides or may be summoned. Section 65 of the Code provides that when an action is rightly brought in any county a summons may be issued to another county against any one or more of the defendants at the plaintiff’s request. Now Clarke was made a defendant to this action, and he was served with summons in Douglas county, and therefore it was proper to summon the other defendants to the action in Dakota county, if the action was rightly brought against Clarke in Douglas county. The test for determining* whether an action be rightly brought in one county against the defendant found, and served therein, so that the other defendants may be served in a foreign county is whether the defendant served in the county in which the action is brought is a lana fule defendant to that action,---whether, his interest in the action and in the
Reversed and dismissed.