Lamb v. Finch, 87 Neb. 565

Lamb v. Finch

87 Neb. 565 | Neb. | 1910

Fawcett, J.

On May 25, 1908, plaintiffs filed their petition and precipe for summons in the district court for Perkins county. On the same day summons was issued and delivered to the sheriff for service. On May 28 the summons was served upon defendant Edwin A. Finch. Defendant appeared specially and objected to the jurisdiction of the court over the person of defendant for the reasons: (1) That defendant is a resident of the state of Colorado; and was not within Perkins county nor the state of Nebraska at the time that the petition was filed; (2) that he was not in the said county or state at the time the summons was issued. The objections are supported by uncontradicted affidavits which fully establish defendant’s contention. The district court sustained the objections to jurisdiction, and, plaintiffs electing to stand upon the service had, dismissed the action with costs. Plaintiffs appeal.

Defendant relies upon Coffman v. Brandhoeffer, 33 Neb. 279; Davis v. Ballard, 38 Neb. 830; Hoagland v. Wil*566cox, 42 Neb. 138, and Hanna v. Emerson, Talcott & Co., 45 Neb. 708. Plaintiffs rely upon section 59 of the code and Adair County Bank v. Forrey, 74 Neb. 811. We are unable to find anything in the Forrey case that will aid plaintiffs in this. The question in that was whether in an action against two or more nonresident defendants, and service was properly obtained on one of them in one county, the summons could be sent to another county for service upon the others. We held that it could, and that “a nonresident of the state who may be found therein is as liable to service as a resident.” We think the converse of that is equally true, viz.: A nonresident of the state is not more liable to service than a resident, where the service is attempted to be made under that clause of section 59 of the code which provides that an action may be brought against a nonresident in any county in which there may be property of, or debts owing to, said defendant, “or where said defendant may be found.” Section 60, upon which defendant’s authorities are predicated, provides: “Every other action (than those enumerated in sections 51 to 59 inclusive) must be brought in the county in which the defendant, or some one of the defendants, resides, or may be summoned.” The difference between sections 59 and 60 is in phraseology merely, and not in substance. The meaning in each is that an action may be brought in any county where the defendant resides or may be found and summoned. So far as this provision for bringing an action is concerned, the legislature has not made any distinction between residents and nonresidents, and we cannot make any. The fact that the legislature in section 59 has given other grounds for bringing an action against a nonresident cannot be held to have either enlarged or restricted the one under consideration. It follows that, this action having been brought and summons issued before defendant entered the state, the service was ineffectual to give the court jurisdiction of the person of defendant. The action was therefore properly dismissed. See defendant’s citations supra.

Affirmed.