45 Neb. 708 | Neb. | 1895
This suit was brought in the court below by the defendants in error against the plaintiff in error, Robert Hanna, and one J. M. Sugar, members comprising the firm of Hanna & Sugar, to recover the balance due upon an account for goods sold and delivered. Summons was issued on January 14, 1891, directed to the sheriff of Douglas county, which was duly served on the same day upon Sugar, but the,writ was returned “not found” as to the defendant Hanna. On December 23, 1891, an alias summons was issued to Dawson county upon the defendant Hanna, which was served by delivering to him personally a certified copy thereof with all the indorsements thereon. Sugar made
It is urged that there is no authority to issue a summons to a county other than the one’where the action is brought in causes like the one at bar. This suit is not against the firm of Hanna & Sugar, but against the defendants individually, who at the time of the contracting of the indebtedness were members of such firm, their partnership relation being stated in the petition aud process merely as desoriptio persones. Service of summons is not controlled by sections 24 and 25 of the Code. (King v. Bell, 13 Neb., 409; Herron v. Cole, 25 Neb., 692; Rowland v. Shephard, 27 Neb., 494; Roggenkamp v. Hargreaves, 39 Neb., 540.) Upon the point under discussion the above cases are in direct conflict with the holding in Morrissey v. Schindler, 18 Neb., 672, which last case must be regarded as overruled by implication by the later cases above mentioned. This action not being in rem,, but in personam, therefore, under section 60 of the Code, may be brought in any county in which one of the defendants resides or may be summoned. (Pearson v. Kansas Mfg. Co., 14 Neb., 211; Cobbey v. Wright, 29 Neb., 274; Bair v. People’s Bank, 27 Neb., 577.) Where a transitory action is brought in a county where one or more of the defendants is properly served, then, under the provisions of section 65 of the Code, summons may be issued to any other county of the state to bring in other defendants. (Cases supra.) Sugar, who was served in Douglas county, it is said, is a mere nominal defendant,
Another ground urged for quashiug the summons is that neither of the defendants reside in Douglas county. So far as jurisdiction was concerned, it was wholly immaterial where the defendants or either of them resided, or
The point is also raised that the petition was filed in the court below a long time before the issuance and service of summons and while the defendant Hanna was absent from Douglas county. The record so discloses, but this fact is no ground for quashing the summons. Sugar being within Douglas county when the petition was filed and the summons which was served upon him was issued, the district court acquired jurisdiction of the action. The first summons having been returned not found as to Hanna, in accordance with the provisions of section 67 of the Code an alias writ was issued. The fact that it was issued nearly a year after the filing of the petition is of no consequence. Obviously this is.so. The legislature never contemplated that a new petition shall be filed, or the original one refiled, at the time of the suing out of an alias summons. (Davis v. Ballard, 38 Neb., 830.)
Another ground stated in the motion to quash is that the summons was served upon the defendant Hanna by leaving a copy of the same at his usual place of residence, and not by delivering the same personally to him. There is no-merit in this objection, for two reasons: First, it is not true that the writ was served by leaving a copy at the residence of the defendant. On the contrary, the return made by the officer upon the writ shows — and it is undisputed by any other portion of the record — that the summons was served by delivering to Hanna personally a copy of the same, including all of the indorsements thereon. In the second place, it is wholly immaterial whether the service was by delivering a copy of the writ to the defendant or by-leaving the same at his usual place of abode. Service in either mode would be good. (Code, sec. 69.)
Another proposition discussed in the briefs, and which is one of the grounds in the motion to quash, is that the petition does not state a cause of action against Hanna. In other words, that the statute of limitations has run against the claim as to said defendant. The action being upon an account, under the statute it became barred at the expiration of four years from the accruing of the cause of action. The question of the bar of the statute is not raised in this case by answer, but it is insisted that the petition on its face discloses that the cause of action arose at such a period of time that under the statute no action can be maintained. It is well settled in this state that when.it is not apparent from the petition that the debt is barred, the statute of limitations must be taken advantage of by answer. It was not so raised in this case. Does the petition show that the action is barred? We do not think so. It is therein averred: “Said defendants are justly indebted to said plaintiffs in the sum of $891.53 for a balance for goods sold and delivered to said defendants during the year 1887, and interest thereon from September 1, 1887, at eight per cent. An itemized statement is hereto attached and made a part of this petition.” The itemized account or statement above referred to is not copied into the transcript. The allegation quoted is the only reference made in the petition to the matter, and it does not state the specific dates or times when the goods were delivered or when they were to have been paid for. If any portion of them were received
Affirmed.