Messick v. Wigent

Norval, J. This is an action of forcible detainer brought by de- ; fendants in error id the county court. A summons was - issued on December 24, 1890, returnable on the 27th day .. of the same month at 10 o’clock A. M., which was served • on the day of its date. On the return day the defendant [693] made a special appearance, objecting to the jurisdiction of' the court over his person, for the reason that the summons-had not been issued and served three days before the day of trial. The objection was overruled, and the defendant refusing to appear further, judgment of ouster was rendered against him. The district court affirmed the judgment. It is claimed that the summons was not issued and served a sufficient length of time prior to the day of trial.. A similar question was presented to this court and considered in White v. German Ins. Co., 15 Neb., 660, and it was. there held that in an action before a justice of the peace, where the summons is served three days before the time, set for'trial, including the day of service, it is sufficient to confer jurisdiction. That decision was based upon section 911 of the'Code, which declares that “ the'summons must be returnable not more that twelve days from its date, and must, unless accompanied with an order to arrest, be served at least three days before the time of appearance,” etc. The foregoing provisions control' the service of summons in justice courts in ordinary actions. The law governing the issuing and service of summons in forcible detainer cases is found in section 1024 of the Code, which reads as follows : “The summons shall be issued and directed, shall state the cause of the complaint, the time and place of trial, and shall be served and returned as in other cases. Such service shall be-three days before the day of trial appointed by the justice.” It will be observed that the provisions of the section-relating to the length of time the summons shall be served before the trial are substantially the same as those ¡ found in section 911 above quoted. It follows that to adopt the construction contended, fot by plaintiff in er'rór would, in effect, overrule the decision in White v. German Ins. Co., supra. That case has been adhered to too'long to now change the rule there announced. We therefore hold that-a summons in an action of forcible entry and de- > tainer, issued and served three, days-before the day ap--: [694] pointed for trial, including the day of service, is sufficient to confer jurisdiction. The judgment is Affirmed. The other judges concur.