14 N.W.2d 217 | Neb. | 1944
Our first opinion in this- case will be found in 143 Neb. 294, 9 N. W. 2d 294. In that opinion we determined that the petition filed in the municipal court in Lincoln was sufficient to. confer jurisdiction over the plaintiff who was served with process in Kimball county. In determining that question we said that the petition in the municipal court “did state a joint cause of action against Carr and the plaintiff here and that on the basis of the petition summons was properly issued for service in Kimball county, Nebraska.” On motion for a rehearing it is pointed out that an endorser of a negotiable instrument must be given notice of dishonor by nonpayment, otherwise such endorser is discharged. Comp. St. 1929, sec. 62-701. The petition filed in the municipal court failed to allege any notice of dishonor to the endorser. It is then urged that as plaintiff failed to state a cause of action against the endorser the municipal court judgment is wholly void. For the purposes, of this opinion we concur in the view that -the petition filed in the municipal court did not state a cause of action against the endorser and that a demurrer thereto,' if timely made, should have been sustained. 10 C. J. S. 1231, sec. 616. The sole question is whether this makes the judgment void so that it may be successfully attacked collaterally.
Our decisions appear to. adhere to the foregoing rule. In Dryden v. Parrotte, 61 Neb. 339, 85 N. W. 287, we said: “Whether the facts stated in the petition constituted a
In Logan County v. Carnahan, 66 Neb. 693, 95 N. W. 812, we said: “The court having jurisdiction to hear and determine the right of a county to enforce a tax lien and to decree foreclosure and sale of real estate in satisfaction thereof, and the county having authority under the statute to institute proceedings and maintain an action in its own behalf and as. trustee for those other bodies, for whom the taxes are levied, a decree rendered which determines the right of a county to maintain such an action, and directs a sale of the property, would not be subject to collateral attack, even though the court committed an error in holding the petition stated a cause of action. If, in such action brought by a county to- foreclose a lien for taxes assessed on real estate, the petition is materially defective because of a failure to properly allege facts disclosing that prior to the institution of the suit to foreclose, the land upon which the tax was a lien had been sold by the county treasurer and tax-sale certificate issued therefor, this fact would not render a decree therein absolutely void for lack of jurisdiction and subject to collateral attack. The sufficiency of a petition is not the test of jurisdiction. Even though the court commits error in holding it sufficient if it had jurisdiction, such holding will not subject the judgment ren
The objection to the sufficiency of the petition filed in the municipal court in failing to state a cause of action against the endorser is here raised by the maker of the note. This is not a matter available to- the maker in a collateral attack upon the judgment. Belcher v. Palmer, 35 Neb. 449, 53 N. W. 380. See, also, 10 C. J. S. 1232.
Plaintiff relies upon Burwell v. Gaylord,, 119 Minn. 426, 138 N. W. 685; Witte v. Broz, 111 Neb. 76, 197 N. W. 121; and Adams v. Guthrie & Co., 113 Neb. 192, 202 N. W. 867. An examination of these cases reveals that the objections to the sufficiency of the petitions were raised in the original actions and not by collateral attack as in the case at bar. We agree , with the rules of law announced in these cases, but they have no application here. It is urged, however, that the following language from the Adams case sustains plaintiff’s position: “And, as this case does not come within the exceptions referred to in this statute, the indorser, C. E. Adams, was discharged. He had no interest in this case adverse to plaintiff, and was a mere sham defendant. This being- true, the trial court erred in not sustaining- the objection to jurisdiction presented by each of the defendants other than C. E. Adams, by way of special appearance, and in not sustaining the motion for judgment on that part of
We agree fully with the doctrine previously announced by this court that in a personal action the service of summons on a nominal defendant in the county where the suit is brought does not authorize the issuance of a summons to another county for the real defendant. But such an issue
Our former opinion is modified to the extent stated herein, the judgment reversing the case and dismissing the action is adhered to and the motion for a rehearing is denied.