51 Neb. 414 | Neb. | 1897
The action out of which this proceeding arose was brought by Stephen Douglas Bayer in the district court for Lancaster county, to foreclose a mortgage executed by George K. Brown and wife in favor of J. R. and L. 0. Richards, to secure certain notes of the said George K. Brown and his brother, Charles T. Brown, payable to the order of the mortgagees named. Among the several parties named as defendants to that action were the said George K. and Charles T. Brown, Benjamin B. Dow, and the plaintiffs in error, Bernard Fowler and the Fowler Elevator Company. Personal service was had upon the Browns and certain other defendants, but return “not found” was made as to the plaintiffs in error and Dow. The last named defendant, however, on the 24th day of February, 1893, and previous to the day named therefor in the summons, filed his answer admitting the existence of the Bayer mortgage and its lien in the order claimed, but denying knowledge of the ownership thereof or the amount due thereon, and asking that the plaintiff be put upon his proof in that regard. Accompanying his answer was a cross-petition for the foreclosure of a mortgage executed by the said George K. Brown and wife upon the premises described in petition to his co-defendant Charles T. Brown, to secure notes payable to the
“Come now the said Fowler Elevator Company and Bernard Fowler, defendants herein, and disclaim any and all right, title, claim, or demand in this action, or to the premises described in the petition filed in this action. Wherefore these defendants pray to be dismissed out of court at the cost of the plaintiff.
“Fowler Elevator Company,
“Per C. H. Fowler, Treasurer.
“Bernard Fowler.”
On May 25, 1893, George K. Brown, Charles T. Brown, and David W. Brown asked leave to answer within ten days, which request was by the court denied, whereupon the two former filed an answer instanter containing a general denial of the allegations of Dow’s cross-petition. On October 3, 1893, David W. Brown and the firm of Charles T. Brown & Brothers asked to be made parties defendant, on the ground that they were necessary parties to the controversy, by reason of an interest therein adverse to Dow and the Fowlers, which motion was on October 13 sustained by the court. On October 16 the several defendants, to-wit, George K. Brown, Charles T. Brown, David W. Brown, and the firm. of Charles T. Brown & Bros., .joined in an answer admitting the execution of the notes and mortgage described in Dow’s cross-
Counsel are in practical accord upon the proposition that the decisive question in this record is the jurisdiction of the district court, and not the regularity of its proceedings anterior to the final decree. The first inquiry suggested by an examination of that subject relates to the effect upon the rights of the parties hereto of the disclaimer above mentioned. Plaintiffs in error, as they contend, did not, by reason of such disclaimer, waive process and thereby submit themselves to the jurisdiction of the court so as to authorize the awarding of judgment against them personally on the cause of action subsequently alleged in defendant in error’s cross-petition. We understand their argument, so' far as it relates to this branch of the case, to rest upon the assumption that their relation to the suit below as parties defendant ended with their disclaimer; but the force of that reasoning is weakened, if not destroyed, by the implied admission
On the part of defendants in error it is contended that the filing of the disclaimer amounted to a general appearance, by which plaintiffs in error submitted themselves to the jurisdiction of the court as effectually for ail purposes, as if, instead of such disclaimer, they had answered admitting the allegations of the petition and cross-petition. To that propositon we quite agree, since a disclaimer by a defendant of any interest in the subject of the action is not a special appearance for the purpose of challenging the jurisdiction of the court over his person. It is in equity held to be a mode of defense requiring action by the court in order to determine whether the person disclaiming is a necessary or proper party defendant. (Isham v. Miller, 44 N. J. Eq., 61; Prescott v. Hutchinson, 13 Mass., 441; Smith, Chancery Practice, 275; Maddock, Chancery Practice, 336*; Story, Equity Pleading [10th ed.], sec. 838; 6 Ency. Pl. & Pr., 721.)
In this connection our attention is directed to section 618 of the Code, as follows: "When defendants disclaim having any title or interest in land or other property, the subject-matter of the action, they shall recover their costs
We may with profit in this connection again refer to some of the facts which appear by direct allegations or plain implication from the pleadings. At the time plaintiffs in error entered their voluntary appearance and thus submitted themselves to the- jurisdiction of the court, Dow’s cross-petition was on file, praying the foreclosure of a mortgage upon the property described in the petition, of which defendants in error, as members of the firm of Charles T. Brown & Bros., claimed to be the equitable owners, that said mortgage had, as claimed by the latter, been previously paid and satisfied in full through transactions by means of which plaintiff in error became largely indebted to them; but that notwithstanding .such fact, plaintiffs in error, as the real parties to said cross-petition, were, through fraud and collusion with Dow, seeking to enforce said mortgage in his name. It further appears that when defendants in error, by leave first obtained,
To the second contention of plaintiffs in error, viz., that personal service within this state is essential to the jurisdicton in every action, to enforce the mere personal obligation of the defendant, it may be answered that the rule asserted can, upon the facts disclosed, have no application to the case at bar. The purpose of the cross-petition was not alone to recover the amount due from plaintiffs in error by reason of the cause of action therein stated, but also to secure an accounting of the transactions resulting, as claimed, in the satisfaction of the mortgage, which, so far as concerns the parties to this proceeding, was the primary subject of controversy. Jurisdiction for such purpose having been acquired by the district court, the cause was properly retained for a determination therein of all issues made by the pleadings. Swift v. Dewey, 20 Neb., 107; Buchanan v. Griggs, 20 Neb., 165; Disher v. Disher, 45 Neb., 100; Hurlburt v. Palmer, 39 Neb., 158, and Anheuser-Busch Brewing Ass’n v. Peterson, 41 Neb., 897, cited by plaintiffs in error, are not in point, since those cases were actions at law for the recovery of damage, and in neither was there involved any subject of equitable jurisdiction. The sound rule is believed to be that stated in the syllabus of the last mentioned case, viz., “Service by publication, or in such other manner as may
We are satisfied from a consideration of the whole record that the judgment of the district court is right and should be
Affirmed.