60 Neb. 722 | Neb. | 1900
By injunction the plaintiff! and appellee seeks to restrain the collection of taxes to the amount of 110 mills on the dollar valuation attempted to be levied for the satisfaction of certain purported judgments rendered against the village of Trenton, one of the appellees. On the trial of the case in the court below it was found that all the judgments save one, were void for want of jurisdiction in the court rendering them, and a decree entered enjoining perpetually the collection of nine-tenths
The appellants the Shickle, Harrison & Howard Iron Company and the county of Hitchcock, present a joint brief, arguing for a reversal of the judgment below. A joint brief is also filed on behalf of the appellee railway company and the village of Trenton. No other appearances are made in the appeal proceedings. The jurisdiction of the court rendering the judgment in favor of appellant the Shickle, Harrison & Howard Company, who are the largest, of the village creditors, depends upon the following instrument filed in the case in that court, no other appearance of any kind being found in the record. The paper referred to is as follows, omitting the title: “Comes now the defendant, the village of Trenton, and by its officers, the chairman of its board of village trustees, and its attorney they being duly authorized by order of record of the village board, hereby waives the issuance and service of summons in the above entitled cause, and enters the voluntary appearance of said defendant herein and also waives the giving of security for costs in this action by the plaintiff.
“Dated this 21st day of January, 1895.
“[seal.] H. B. Seeley,
“Chairman of the Board of Tillage Trustees of the Tillage of Trenton, Defendant.
.“Attest: A. L. Taylor, F. M. Flansbiirg,
“Tillage Clerk. Tillage Attorney.”
A petition had been filed January 5, and the so-called appearance was filed the 23d of the same month. At the May term of the court following, judgment was rendered against the village as by default. The claims against the village appear to have been for material used for the construction of a waterworks system, for which bonds had been voted by the taxpayers in the sum of $5,000. The expenses incurred in the construction of the system, hoAvever, seem to have greatly exceeded the pro
The controlling question presented is whether the court acquired jurisdiction over the village by the filing of the instrument heretofore copied. The question is one by no means free from doubt. Ordinarily, a defendant may waive the issuance and service of summons, and enter a voluntary appearance in a case, such appearance being equivalent to actual service of summons in the manner provided by statute. Code of Civil Procedure, sec. 72; Merchants Savings Bank v. Noll, 50 Nebr., 616. Whether or not a municipal corporation, whose officers derive their powers solely from the statute; may make such an appearance as is contemplated by the section referred to, and waive the issuance and service of summons, is not necessarily involved in this action, and need not therefore be considered. The proposition herein to be determined is as to the authority of an attorney and chairman of the board of trustees of a village to waive the issuance and service of summons in an action against the village in the manner hereinbefore mentioned, and thereby give to the court jurisdiction to render a valid and binding judgment against such village. That an attorney can not, without authority therefor, make such an appearance, we regard as the law of this state and well supported by authority. Ellis v. Ellis, 13 Nebr., 91; Star v. Hall, 87 N. Car., 381; Atchison, T. & S. F. R. Co. v. Benton, 12 Kan., 698; Bridgeport Savings Bank v. Eldredge, 28 Conn., 555, 556.
It is urged, however, that the chairman of the board of trustees, being the person upon whom service of summons is required to be had, may properly waive its issuance, and enter a voluntary appearance for the corporation in an action against it. There is certainly no direct authority for such action, nor does it appear to us to be based on any well recognized rule of construction to hold that -such authority is lodged in a presiding
It is nrged that the authority of the parties who entered an appearance for the village in this action can not be inquired into in a proceeding of the nature of the present action, nor can the judgment rendered in another action be assailed in the manner attempted by this proceeding. We are mindful of the rule that in courts of general jurisdiction the proceedings taken, including questions of jurisdiction, are presumed to be regular and in conformity with law. Where, however, the record discloses the jurisdictional steps taken, and it is made to appear that no jurisdiction was acquired over the defendant, the rule invoked is rendered unavailing. If the court was without jurisdiction over the defendant, then the judgment rendered is void, and may be attacked as such by any one whose rights are affected by its rendition, and its invalidity shown in any action in which it may be called in question. It has been frequently held, upon principles appearing sound and wise, that an unauthorized appearance in a case, where no process has been served upon a defendant, and it has not been ratified or confirmed, is wholly void as to such defendant for whom such unauthorized appearance was made. Kirschbaum v. Scott, 35 Nebr., 199; Kepley v. Irwin, 14 Nebr., 300; Shelton v. Tiffin, 6 How. [U. S.], 163; 2 Ency. Pl. & Pr., p. 690, and numerous cases therein cited, 1
Affirmed.