Gilbert v. J. J. Brown & Brother

9 Neb. 90 | Neb. | 1879

Maxwell, Ch. J.

In October, 1874, the defendants in error recovered a judgment against the plaintiffs, in the probate court of Saline county, for the sum of $357.40 and costs. Within a short time after the rendition of the judgment a bond for stay of execution was filed in behalf of the plaintiffs in error, signed by two sureties, but not by the plaintiffs. In March, 1877, an execution was issued on the judgment, and returned unsatisfied. A transcript of the judgment was thereupon filed in the office of the clerk of the district' court, upon which execution was issued and levied upon certain real estate of the plaintiffs in error, which was sold. The plaintiffs in error’filed several objections to the sale, which were overruled by the court, and the sale confirmed. They now bring the cause into this court by petition in error.

The principal error relied on is, that the probate court had no jurisdiction of the parties at the time judgment was rendered. This objection, if sustained, would defeat the sale, as it is the duty of a plaintiff, in an action where- there is no appearance, to see that the process of the court has been properly served, and that his adversary is in court. Harshey v. Blackmar, 20 Iowa, 161. And no valid personal judgment can be rendered by a court without jurisdiction of the person as well as the subject matter.

There is no bill of exceptions accompanying the record. We therefore have no copies of the original papers in the action in the probate court, and must be governed entirely by the transcript of the probate judge in. determining the case.

The transcript is as follows:

“ J. J. Brown and Bro. v. John Gilbert and J. H. Artist.

“Bill of particulars filed September 25,1874. Summons issued on the same day, made returnable according to 'law, and delivered to George D. Greene, deputy constable, for service. September 28, a.d. 1874, summons returned by deputy constable Greene, indorsed served on the within named defendants, on the 25th day of September, 1874. Cause set for hearing at October term of court,” etc. At the close of the transcript, in the taxation of costs, we find the following: “ J. W. Greene, deputy sheriff......................$3.00 “George IT. Hastings...................................2.50”

A constable has no authority, under the statute, to appoint a deputy, and if the service upon the defendants was made by an unauthorized person it would be void. But county judges, as well as justices of the peace, have authority to depute persons to serve process, and, in the absence of a showing to the contrary, it will be presumed, after judgment, that the person serving the process was lawfully authorized.

It is unnecessary for an officer to certify on his return that service was made in the county in which he is an officer, as such will be the presumption.

A second transcript is attached to the record, seeking to impeach the first; but as it is not a part of the record, nor embodied in a bill of exceptions, it cannot be cbnsidered. There is sufficient prima fade in the record to show service upon the plaintiffs in error, and as they appeared and filed a bond for stay of execution, the objections made nearly five years after the rendition of the judgment must not be predicated' on mere possibility, but it must clearly appear that the court had no jurisdiction. This not being the case, the judgment of the district court must be affirmed.

Judgment aeeirmed.