111 Neb. 9 | Neb. | 1923
This action originated in the county court of Deuel county, where plaintiff sued to recover $509 for the alleged conversion by defendant of a quantity of wheat. Defendant, at all times material to this inquiry, was a resident of Sedgwick county, Colorado, and was served in that county with a summons issued out of the county court of Deuel county, Nebraska, by the sheriff of Sedgwick county, Colorado, who was regularly appointed by the sheriff of Deuel county for that purpose. Defendant appeared specially in county court and objected to the jurisdiction of the court. His objections were overruled. Thereupon he filed his answer in the county court repeating therein his objections to jurisdiction which he had formerly filed. In his answer he pleaded additional defenses in respect of the merits. Upon the hearing the county court found in plaintiff’s favor and rendered judgment against defendant for $509 and costs. Defendant appealed to the district court from the judgment of the county court.
The district court held, inter alia, that the facts, as pleaded, presented “an action in personam,” and that when the action was begun “defendant was absent from and not a resident of Deuel county,” but was a resident of Jules-burg, Colorado, and dismissed the action. Alleging error, plaintiff executed an appeal bond and brought the case to this court for review.
In the case before us the alleged defect in respect of the summons and its service upon defendant appears oh the face of the record. In the answer, in respect of the merits, this statement, inter alia, appears:
“The defendant hereby offers to do equity in the premises and tenders the amount due upon said execution into the court together with interest and costs to date. Wherefore this defendant prays that the plaintiff’s action be dismissed and that he recover his costs herein expended.”
It does not appear that defendant actually tendered any money into court, but from the pleadings, and particularly from defendant’s answer, it is obvious that the power of thé
Crowell & Crowell v. Galloway, 3 Neb. 215, is an early case where Judge Lake, speaking for the court, said: “If a defendant intend to rely on the want of personal jurisdiction, as a defense to a judgment entered against him, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court; if he appear for any other purpose, such appearance is general and a waiver of all defects in the original process, and an acknowledgment of the complete jurisdiction of the court in the action.” In Pearson v. Kansas Mfg. Co., 14 Neb. 211, we held: “An appeal from a judgment in a personal action gives the appellate court jurisdiction of the appellant regardless of whether the lower court had acquired jurisdiction over him or not.” The Pearson case was cited with approval in Dunn v. Haines, 17 Neb. 560. In Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, we held: “If a defendant invoke the judgment
Some confusion has crept into the decisions of our court on the question of special appearance, in this class of cases, and the rule applicable to the pleader who answers over to the merits. The early rule in the state, and the more recent rule as well, is stated in the excerpt from the Sampson case which is above cited.
Subsequent to the earlier decisions on this question the rule was modified in some respects and thereby its application became confused. However in Banker’s Life Ins. Co. v. Robbins, 59 Neb. 170, which was decided in 1899, and herein cited, and in the Sampson case as well, the earlier rule was followed and both cases have been cited and approved continuously from the time of their adoption. We believe it to be the preferable rule and adhere thereto.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.