10 N.W.2d 458 | Neb. | 1943
This action was begun in the district court for Custer county. George E. Stuckey was the only plaintiff and Roy F. Stuckey was the only person named as defendant. Summons, regular in form and directed to the sheriff of Dawson county, was issued by the clerk of such court. This summons was regularly served upon the defendant in Dawson county, and return thereof made by the sheriff of Dawson county, all within the time specified therein. The defendant filed a special appearance by which he objected to the jurisdiction of the court in Custer county over his person. The trial court sustained such special appearance and dismissed the plaintiff’s petition. The plaintiff has brought the cause to this court by appeal.
The question of whether or not such special appearance was properly sustained, under such conditions, is the sole question presented upon appeal for determination. The facts hereinafter’ stated are alleged by the petition to be true.
In adjudging the merits of a special appearance for lack of jurisdiction of the person solely on account of improper venue, the court must consider the allegations of the petition as true, and determine such merits from the averments of such petition, the character'of the judgment that might properly be rendered on default of appearance, and the place, time and manner of the service of process. 67 C. J. 24; Terry v. Rivergarden Farms Co., 29 Cal. App. 59, 154 Pac. 476; Work v. Associated Almond Growers, 76 Cal. App. 708, 245 Pac. 790. In this case it is conceded that the summons was regular in form, and was served and returned in the manner and within the time prescribed by law. The question presented relates only to whether or not
Section 20-401, Comp. St. 1929, so far as applicable to this action, provides as follows: “ * * * and all actions for the following causes must be brought in the county in which the subject, of the action is situated, except as provided in the next following section: First. For the recovery of real property or of an estate or interest therein; Second. For the partition of real property; Third. For the sale of real property under a mortgage, lien or other incumbrance or charge.” The “next following section,” referred to in the above-quoted portion of section 20-401, refers only to cases affecting lands in two qr more counties. A study of the allegations of the petition herein at once discloses that the plaintiff holds title to the lands involved in trust. No power to sell the land without the consent of the defendant is shown to exist. The defendant claims an interest in the land: If plaintiff did sell the lands without the defendant’s consent, he might be liable to the defendant for its reasonable value rather than its sale price in an action for accounting, in case the defendant established that the sale price was less than the reasonable value. The beneficiaries of the trust held by the plaintiff are the plaintiff and the defendant. Under the terms of the agreements pleaded the lands must be sold and the sale price thereof determined, before the rights and liabilities of the parties can be determined. The action primarily is one to establish 'the fact that land is held in trust, and to have the same sold at judicial sale in order that the court may make an accounting between the parties under the rule, often announced, to the effect that when a court of equity has acquired jurisdiction of a cause for one purpose it may and should retain it generally for complete relief. The action is not primarily an action for an accounting with the sale of the land merely incidental thereto, as contended by the defendant. The district court for Dawson county could not, under our statutes, direct the
The defendant appellee contends that this action is transitory in nature. He cites the case of Scow v. Bankers Fire Ins. Co., 109 Neb. 241, 190 N. W. 858, in support of his contention. In that case the judgment sought was rescission of a contract for fraud, and cancelation of notes and mortgages upon real estate located in a foreign county and given to secure payment of the purchase price of stock in a corporation. As pointed out in that case the relief prayed would operate entirely against the person of the defendant. Appropriate space does not permit a discussion of the various cases cited by the defendant to support his contention. The defendant cites the following authorities: Barnes v. Barnhart, 102 App. Div. 424, 92 N. Y. Supp. 459; Turlock Theatre Co. v. Laws, 12 Cal. (2d) 573, 86 Pac. (2d) 345; State v. District Court, 120 Minn. 99, 139 N. W. 135; Smith v. Barr, 76 Minn. 513, 79 N. W. 507; State v. District Court, 85 Minn. 283, 88 N. W. 755; State v. District Court, 94 Minn. 370, 102 N. W. 869. In none of these cases is the primary object sought the judicial sale of real estate with an accounting merely incidental thereto. In fact in
Under the rules above set forth and for reasons above given the judgment of the trial court is reversed with instructions to reinstate the plaintiff’s action, overrule the defendant’s special appearance, and to require the defendant to plead within a time to be fixed by the trial court. The costs in this court are taxed to the defendant.
Reversed, with directions.