11 Neb. 222 | Neb. | 1881
This is an action in the nature of a creditor’s bill to subject 407 acres of land, formerly held in the name of
The defense relied upon is: First, that the land in question never in fact belonged to David McCaig, but was a part of the estate of his father, John McCaig, Sr., and was held by David in trust for the heirs of said estate, who from the time of the purchase, in 1866, have resided continuously thereon, and have been in the quiet and peaceable possession of the same. Second, that the pretended judgment is a nullity, for want of jurisdiction in the court rendering the same. On the trial of the cause the court found the issues in favor of the defendants, and dismissed the action. The plaintiff appeals to this court.
It appears from the testimony that in the year 1865 the McCaigs were residents of Ogle county, Illinois, and that John McCaig, Sr., and Mary Mc-Caig, defendant herein, were husband and wife and the parents of David, Daniel, William, Joseph, and Sarah McCaig; that David was the eldest son, and was largely entrusted by his father with the management of his affairs; that in September or October of that year, David, at his father’s request, came to this state to select land for a home for his father, and purchased the land in question for the sum of $2,400, paying at the time of the purchase $1,000 of his father’s money, but taking the deed for the premises in his own name, and executing a mortgage upon said real estate to secure the unpaid purchase money; that the reason why the deed was taken in his name instead of his father’s was to enable him to execute a mortgage upon the lands in question without the delay incident to the transmission of an instrument to Illinois for execution, there being no communication
It also appears that the debt was contracted by the state grange prior to that time, and that no part of it was contracted on the credit of David McCaig, and that he was induced to sign the notes in question upon the representations of Otis (a partner of the plaintiff), that “ you will not lose a dollar by signing this; there is enough stuff here, if taken care of and not levied upon, to make all our indebtedness. You will not lose a dollar by signing the note.” And he denies the testimony of Otis, that he represented to him that he owned any portion of the land in dispute. Upon this testimony we are asked to subject this real estate to the payment of the judgment. The testimony of the defend
As to the jurisdiction of the court, there was no appearance in the action, and the court, if it acquired jurisdiction, did so by the service of a summons. The return on the summons is as follows : “I received this writ at 9 o’clock a.m., on the 5th day of June, a.d. 1877, and as commanded thereby I summoned the within named David McCaig, John McCaig, (William McCaig not found in Cass county, Neb.) on the 6th day of June, a.d. 1877, in Cass county, Neb., by leaving at the residence of David McCaig and John McCaig a true and certified copy of this summons, with all the endorsements thereon.
“M. B. Cutler, Sheriff of Cass Co., Neb.
“By Wm. Gilmore, Bailiff.”
A bailiff, unless specially appointed for the purpose, has no authority to serve process issued out of the district court, and if it clearly appeared that the service was made by him as bailiff, it would be null and void. There is testimony, however, tending to prove that he was deputy sheriff at or about the time designated, and the court below found the service to be sufficient, and we are unable to say that this finding is incorrect, although the evidence may not fully satisfy our minds upon that point. The judgment of the district court is affirmed.
Judgment aeeirmed.