NEBRASKA RULES OF CIVIL PROCEDURE
In the state of
Nebraska, no process server license is required. In any county where there is no individual contracted as a
constable, any person twenty-one years of age or older or a corporation, partnership,
or limited liability company that satisfies the requirements of subsection (2)
may serve process. In addition, any
individual or entity may exercise the powers provided in subsection (1) so long
as such person or entity: is not a party to the action, is not related to a
party to the action, does not have an interest in the action, is not a public
official employed by the county where service is made whose duties include
service of process, and furnishes a good and sufficient corporate surety bond
in the sum of fifteen thousand dollars.
25-505.01. SERVICE OF SUMMONS;
METHODS.
25-506.01. PROCESS; BY WHOM
SERVED.
25-507. PROCESS SERVER;
REQUIREMENTS; BOND; COST.
25-507.01. SUMMONS; PROOF OF
SERVICE; RETURN DATE.
25-508.01. SERVICE ON
INDIVIDUAL.
25-509.01. SERVICE ON
CORPORATION.
25-510.02. SERVICE ON STATE OR
POLITICAL SUBDIVISION.
25-511.02. SERVICE ON DISSOLVED
CORPORATION.
25-512.01. SERVICE ON
PARTNERSHIP.
25-513.01. SERVICE ON
UNINCORPORATED ASSOCIATION.
25-514.01. SERVICE ON AGENT.
25-516.01. VOLUNTARY APPEARANCE;
SPECIAL APPEARANCE.
25-517.02. SUBSTITUTE AND
CONSTRUCTIVE SERVICE.
25-520.01. SERVICE BY
PUBLICATION; MAILING OF PUBLISHED NOTICE; REQUIREMENTS; WAIVER; WHEN MAILING
NOT REQUIRED.
25-520.02. ACTION OR PROCEEDING,
DEFINED.
25-520.03. SECTIONS, HOW
CONSTRUED.
25-522. SERVICE BY PUBLICATION;
DESIGNATION OF NEWSPAPER.
LEGAL NEWSPAPER, DEFINED; PRIOR
PUBLICATIONS LEGALIZED.
25-525. JUDGMENT ON CONSTRUCTIVE
SERVICE; HOW OPENED; PROCEDURE.
25-527. PROCEDURE WHEN
DEFENDANTS NOT ALL SERVED.
25-528. PERSONAL SERVICE UPON
APPOINTED RESIDENT AGENT; APPOINTMENT INVALIDATES CONSTRUCTIVE SERVICE, WHEN.
25-529. PERSONAL SERVICE UPON
APPOINTED RESIDENT AGENT; APPOINTMENT; RECORDING AND INDEXING; FEES.
25-530.08. COMPANY, FIRM, OR
UNINCORPORATED ASSOCIATION; APPOINTMENT OF AGENT; EXECUTION ON JUDGMENT; FEES.
25-535. PERSON, DEFINED.
25-537. SERVICE OUTSIDE STATE.
25-540. SERVICE OUTSIDE STATE;
MANNER.
25-541. SECTIONS, HOW CONSTRUED.
25-542. SERVICE OF PROCESS;
APPLICABILITY.
25-1223. SUBPOENA; ISSUANCE; BY
WHOM SERVED; RETURN; COSTS.
SUBPOENA; TO WHOM DIRECTED;
DUCES TECUM.
25-1225. SUBPOENA ON TAKING
DEPOSITION; BY WHOM ISSUED.
SUBPOENA; MANNER OF SERVICE;
TIME; RETURN.
25-1227. WITNESSES IN CIVIL
CASES; COMPULSORY ATTENDANCE; DISTANCE REQUIRED TO TRAVEL; FEES AND EXPENSES
ALLOWED.
1.
Unless otherwise
limited by statute or by the court, a plaintiff may elect to have service made
by any of the following methods:
a.
Personal service
which shall be made by leaving the summons with the individual to be served;
b.
Residence service
which shall be made by leaving the summons at the usual place of residence of
the individual to be served, with some person of suitable age and discretion
residing therein; or
c.
Certified mail
service which shall be made by
i.
within ten days of
issuance, sending the summons to the defendant by certified mail with a return
receipt requested showing to whom and where delivered and the date of delivery,
and
ii.
filing with the
court proof of service with the signed receipt attached.
2.
Failure to make
service by the method elected by the plaintiff does not affect the validity of
the service. Source: Laws 1983, LB 447, § 22; Laws 1984, LB 845, § 21. Cross
Reference: Workers' compensation cases, manner of service, see sections 48-174,
48-175, 48-175.01, and 48-190. Case Note: Plaintiff may elect to have service
made by any of the methods specified in the statute. West Town Homeowners Assn.
v. Schneider, 221 Neb. 674, 380 N.W.2d 265 (1986).
1.
Unless the
plaintiff has elected service by certified mail, the summons shall be served by
the sheriff of the county where service is made, by a person authorized by
section 25-507 or otherwise authorized by law, or by a person, corporation, partnership,
or limited liability company not a party to the action specially appointed by
the court for that purpose
2.
Service by
certified mail shall be made by plaintiff or plaintiff's attorney. Source: Laws
1983, LB 447, § 23; Laws 1994, LB 1224, § 36; Laws 1999,LB 319, § 1. Effective
date August 28, 1999. Cross Reference: Workers' compensation cases, manner of
service, see sections 48-174, 48-175, 48-175.01, and 48-190.
1.
In any county
which does not have a person contracted as a constable pursuant to section
25-2229, any person twenty-one years of age or older or a corporation,
partnership, or limited liability company that satisfies the requirements of
subsection (2) of this section shall have the same power as a sheriff to
execute any service of process or order.
2.
Any person or
entity may exercise the powers provided in subsection (1) of this section if
such person or entity
a.
is not a party to
the action,
b.
is not related to
a party to the action,
c.
does not have an
interest in the action,
d.
is not a public
official employed by the county where service is made whose duties include
service of process, and
e.
furnishes a good
and sufficient corporate surety bond in the sum of fifteen thousand dollars,
such bond being conditioned upon such person or entity faithfully and truly
performing the duties of process server.
3.
Evidence of the
corporate surety bond shall be provided to the clerk of each court in which
such person or entity executes service of process or orders. Such person or
entity is not required to furnish more than one bond to execute service of
process or orders in any state court in the State of Nebraska. When service of
process is made by such person or entity authorized by this section, proof of such
service of process shall be shown by an affidavit.
4.
The cost of
service of process is taxable as a court cost, and when service of process is
made by such person or entity other than a sheriff the cost taxable as a court
cost is the lesser of the actual amount incurred for service of process or
orders or the statutory fee set for sheriffs in section 33-117. Source: Laws
1999, LB 319, § 2. Effective date August 28, 1999.
1.
Within twenty days
after the date of issue, the person serving the summons, other than by
certified mail, shall make proof of service to the court stating the time,
place, including the address if applicable, name of the person with whom the
summons was left, and method of service, or return the unserved summons to the
court with a statement of the reason for the failure to serve.
2.
When service is by
certified mail, the plaintiff or plaintiff's attorney shall file proof of
service within ten days after return of the signed receipt.
3.
Failure to make
proof of service or delay in doing so does not affect the validity of the
service. Source: Laws 1983, LB 447, § 24. Cross Reference: Workers'
compensation cases, manner and time of service, see sections 48-174, 48-175,
48-175.01, and 48-190.
1.
An individual
party, other than a person under the age of fourteen years, may be served by
personal, residence, or certified mail service.
2.
A party under the age
of fourteen years may be served by personal, residence, or certified mail
service upon an adult person with whom the minor resides and who is the minor's
parent, guardian, or person having care of the minor. If none of these can be
found, a party under the age of fourteen years may be served by personal
service.
3.
If the person to
be served is an incapacitated person for whom a conservator or guardian has
been appointed or is confined in any institution, notice of the service shall
be given to the conservator, guardian, or superintendent or similar official of
the institution. Failure to give such notice does not affect the validity of
the service on the incapacitated person. Source: Laws 1983, LB 447, § 25. Case
Note: Although subsection (3) of this section requires that where summons is
served on an incapacitated person, notice of such service shall be given to the
guardian, it also provides that failure to give such notice will not affect the
validity of the service. In re Interest of A.M.K., 227 Neb. 888, 420 N.W.2d 718
(1988).
A corporation may be served by
personal, residence, or certified mail service upon any officer, director,
managing agent, or registered agent, or by leaving the process at the
corporation's registered office with a person employed therein, or by certified
mail service to the corporation's registered office. 25-509.01. Service on
corporation. A corporation may be served by personal, residence, or certified
mail service upon any officer, director, managing agent, or registered agent,
or by leaving the process at the corporation's registered office with a person
employed therein, or by certified mail service to the corporation's registered
office. Source: Laws 1983, LB 447, § 26. Cross References: For process and
service on foreign insurance corporation, see sections 44-135, 44-2009 to
44-2013, and 44-5507. Registered office of corporation, see sections 21-1909,
21-1971, 21-2034, and 21-20,177.
- The State of
Nebraska, any state agency as defined in section 81-8,210, and any
employee of the state as defined in section 81-8,210 sued in an official
capacity may be served by leaving the summons at the office of the
Attorney General with the Attorney General, deputy attorney general, or
someone designated in writing by the Attorney General, or by certified
mail service addressed to the office of the Attorney General.
- Any county, city,
or village of this state may be served by personal, residence, or
certified mail service upon the chief executive officer, or clerk.
- Any political
subdivision of this state, as defined in subdivision (1) of section
13-903, other than a county, city, or village, may be served by personal,
residence, or certified mail service upon the chief executive officer,
clerk, secretary, or other official whose duty it is to maintain the
official records, or any member of the governing board or body, or by
certified mail service to the principal office of the political subdivision.
Source: Laws 1983, LB 447, § 27. Case Note: Pursuant to this section, the
Attorney General must be served on behalf of the committee and that
service may be accomplished by one of the methods for which provision is
made in subsection (1). Ray v. Nebraska Crime Victim's Reparations Comm.,
1 Neb. App. 130, 487 N.W.2d 590 (1992).
A dissolved corporation may be served
by personal, residence, or certified mail service upon any appointed receiver.
If there is no receiver, a dissolved corporation may be served by personal,
residence, or certified mail service upon any person who at the time of
dissolution was an officer, director, managing agent, or registered agent, or
upon any officer or director designated in the last annual report filed with
the Secretary of State. Source: Laws 1983, LB 447, § 28.
A partnership or limited partnership
may be served by personal, residence, or certified mail service upon any
partner except a limited partner, or by certified mail service at its usual
place of business, or the process may be left at its usual place of business
with an employee of the partnership or limited partnership. Source: Laws 1983,
LB 447, § 29. Cross Reference: Registration and agent for service of process of
foreign limited partnerships, see section 67-281.
An unincorporated association may be
served by personal, residence, or certified mail service upon an officer or managing
agent, or by certified mail service to the association at its usual place of
business, or by leaving the process at its usual place of business with an
employee of the unincorporated association. Source: Laws 1983, LB 447, § 30.
Any party may be served by personal,
residence, or certified mail service upon an agent authorized by appointment or
by law to receive service of process. Source: Laws 1983, LB 447, § 31.
- The voluntary
appearance of the party is equivalent to service.
- Prior to filing
any other pleading or motion, a special appearance may be made for the
purpose of objecting to the jurisdiction of the court over the person of
the defendant. The defendant's assertion of a claim for affirmative relief
by way of counterclaim, cross-claim, or third-party claim waives any
objection that the court erred in overruling the special appearance. The
defendant's participation in proceedings on any issue other than jurisdiction
over the person waives any objection that the court erred in overruling
the special appearance except the objection that the defendant is not
amenable to process issued by a court of this state. Source: Laws 1983, LB
447, § 32.
- Upon motion and
showing by affidavit that service cannot be made with reasonable diligence
by any other method provided by statute, the court may 3 N.W. 464 (1913).
- Publications need
not be on same day of week; "week" defined. Burr v. Finch, 91
Neb. 417, 136 N.W. 72 (1912).
- Notice must be
published in all regular issues during week. Smith v. Potter, 90 Neb. 298,
133 N.W. 437 (1911); Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).
- Notice takes place
of summons; publication requiring defendant to answer on second Monday is
irregular and may be set aside on motion. Calkins v. Miller, 55 Neb. 601,
75 N.W. 1108 (1898).
- Four weekly
publications are sufficient. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964
(1891); Fouts v. Mann, 15 Neb. 172, 18 N.W. 64 (1883).
- Notice requiring
defendant to answer in forenoon is valid; but has whole day to answer.
Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151 (1888).
- Notice once each
week for four successive weeks is completed upon distribution of last
publication. Davis v. Huston, 15 Neb. 28, 16 N.W. 820 (1883). Case Notes -
Contents:
1.
Publication notice
must contain a summary statement of the object and prayer of the petition,
mention the court wherein it is filed, and notify the person or persons to be
served when they are required to answer. Coffin v. Maitland, 146 Neb. 477, 20
N.W.2d 310 (1945).
2.
Plaintiff's cause
of action is not required to be set out in notice. Smith v. Potter, 92 Neb. 39,
137 N.W. 854 (1912).
3.
Notice stating
that action was for "partition" of lands was sufficient without
reciting "partition or sale." McCormick v. Paddock, 20 Neb. 486, 30
N.W. 602 (1886).
4.
Notice in
attachment containing general description of property attached is not void.
Grebe v. Jones, 15 Neb. 312, 18 N.W. 81 (1883). Case Note - Miscellaneous: 1. Notice to nonresident herein complied
with this section. Armstrong v. Bates, 94 Neb. 462, 143 N.W. 477 (1913).
25-520. SERVICE BY PUBLICATION; WHEN COMPLETE; HOW PROVED; AFFIDAVIT OF
PUBLICATION. Service by publication shall be deemed complete when it shall have
been made in the manner and for the time prescribed in section 25-519; and such
service shall be proved by the affidavit of the printer or his foreman or
principal clerk, or other person knowing the same. Source: R.S. 1867, Code §
80, p. 406; R.S. 1913, § 7643; C.S. 1922, § 8586; C.S. 1929, § 20-520. Case
Notes:
i.
In tax foreclosure
case, section is strictly construed. Armstrong v. Griffith, 94 Neb. 515, 143
N.W. 461 (1913).
ii.
Service is
complete upon distribution of paper containing its fourth successive weekly
insertion. Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).
iii.
Any one having
actual knowledge of facts may make affidavit. Taylor v. Coots, 32 Neb. 30, 48
N.W. 964 (1891).
iv.
Court may permit amendment
of affidavit to conform to facts. Britton v. Larson, 23 Neb. 806, 37 N.W. 681
(1888).
In any action or proceeding of any kind or nature, as defined in
section 25-520.02, where a notice by publication is given as authorized by law,
a party instituting or maintaining the action or proceeding with respect to
notice or his attorney shall within five days after the first publication of notice
send by United States mail a copy of such published notice to each and every
party appearing to have a direct legal interest in such action or proceeding
whose name and post office address are known to him. Proof by affidavit of the
mailing of such notice shall be made by the party or his attorney and shall be
filed with the officer with whom filings are required to be made in such action
or proceeding within ten days after mailing of such notice. Such affidavit of
mailing of notice shall further be required to state that such party and his
attorney, after diligent investigation and inquiry, were unable to ascertain
and do not know the post office address of any other party appearing to have a
direct legal interest in such action or proceeding other than those to whom
notice has been mailed in writing. It shall not be necessary to serve the
notice prescribed by this section upon any competent person, fiduciary,
partnership, or corporation, who has waived notice in writing, entered a
voluntary appearance, or has been personally served with summons or notice in
such proceeding. Source: Laws 1957, c. 80, § 1, p. 325; Laws 1959, c. 97, § 1,
p. 416. Case Notes:
1.
County court which
obtained jurisdiction of res of estate upon filing of petition retains jurisdiction
until service of notice is perfected or until matter is abandoned. Fischer v.
Lingle, 195 Neb. 108, 237 N.W.2d 110 (1975).
2.
A mortgagor in a
foreclosure proceeding is not entitled to personal service of the published
notice of sale. Hollstein v. Adams, 187 Neb. 781, 194 N.W.2d 216 (1972).
3.
Copy of notice,
mailed hereunder, that a will and codicil are being offered for probate is
sufficient to put party upon inquiry as to documents offered. Flint v. Panter,
187 Neb. 615, 193 N.W.2d 279 (1970).
4.
This section does
not apply to notice of dissolution of corporation. Christensen v. Boss, 179
Neb. 429, 138 N.W.2d 716 (1965).
5.
First cousins of
testator were not prima facie heirs-at-law, and hence were not required to be
notified by mail of pending probate of will. Estate of Colman v. Redford, 179
Neb. 270, 137 N.W.2d 822 (1965).
6.
Notice by mail is
not required to be given to the holder of a claim for unliquidated damages.
Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).
7.
Notice by mail was
not required to be given to property owner of intention by municipality to pass
resolution of necessity for constructing sewer system. Jones v. Village of
Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).
8.
Notice was not
required to be sent to all owners of land within school district of proceedings
to change boundaries thereof. Lindgren v. School Dist. of Bridgeport, 170 Neb.
279, 102 N.W.2d 599 (1960).
The term action or proceeding means all actions and proceedings in
any court and any action or proceeding before the governing bodies of municipal
corporations, public corporations, and political subdivisions for the
equalization of special assessments or assessing the cost of any public
improvement. Source: Laws 1957, c. 80, § 2, p. 326. Case Notes:
1.
The act, of which
this section is a part, is not amendatory, but is new and independent
legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d
537 (1963).
2.
Resolution of
necessity for constructing a sewer system was not within purview of this
section. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).
3.
Statute does not
contemplate personal notice must be given to a class on matters of general
public concern. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102
N.W.2d 599 (1960).
Sections 25-520.01 to 25-520.03 are intended by the Legislature to
be cumulative and supplemental to existing legislation. They are deemed to be a
matter of general statewide concern. Such sections apply to all parties
authorized by law to give notice by publication, including the State of
Nebraska, its governmental subdivisions, and all public and municipal
corporations. Source: Laws 1957, c. 80, § 3, p. 326. Case Note:
1. The act, of which
this section is a part, is not amendatory, but is new and independent
legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d
537 (1963).
It shall be the lawful right of any plaintiff or petitioner in any
suit, action or proceeding, pending or prosecuted in any of the courts of this
state, in which it is necessary to publish in a newspaper any notice or copy of
an order, growing out of, or connected with, such action or proceeding, either
by himself or his attorney of record, to designate in what newspaper such
notice or copy of order shall be published; and it shall be the duty of the
judges of the district court, county judges, or any other officer charged with
the duty of ordering, directing or superintending the publication of any of
such notices, or copies of orders, to strictly comply with such designations
when made in accordance with the provisions of this section. Source: Laws 1909,
c. 94, § 1, p. 399; R.S. 1913, § 7645; C.S. 1922, § 8588; C.S. 1929, § 20-522.
25-523.
No newspaper shall be considered a legal newspaper for the
publication of legal and other official notices unless the same shall have a
bona fide circulation of at least three hundred paid subscriptions weekly, and
shall have been published within the county for fifty-two successive weeks
prior to the publication of such notice, and be printed, either in whole or in
part, in an office maintained at the place of publication; PROVIDED, that
nothing in this section shall invalidate the publication in a newspaper which
has suspended publication or been printed outside of the county, on account of
fire, flood or other unavoidable accident, for not to exceed ten weeks, in the
year last preceding the first publication of a legal notice, advertising or
publication; PROVIDED FURTHER, that all publications made prior to May 22,
1941, in a newspaper which has, on account of flood, fire or other unavoidable
accident, suspended publication or been printed in an office outside of the
county, are hereby legalized; PROVIDED FURTHER, that all newspapers, otherwise
complying herewith, which have, on account of flood, fire or other unavoidable
accident, suspended publication or been printed in an office outside of the
county, for not to exceed ten weeks in any year, are hereby legalized; AND
PROVIDED FURTHER, that the publication of legal or other official notices in
the English language in foreign language newspapers published within the county
for fifty-two successive weeks prior to the publication of such a notice, and
printed either in whole or in part in an office maintained at the place of
publication, shall also be legal. Source: Laws 1915, c. 221, § 1, p. 490; Laws
1919, c. 133, § 1, p. 309; C.S. 1922, § 8589; C.S. 1929, § 20-523; Laws 1935,
c. 40, § 1, p. 157; Laws 1941, c. 31, § 1, p. 139; C.S.Supp.,1941, § 20-523;
Laws 1943, c. 44, § 1(1), p. 189; R.S. 1943, § 25-523; Laws 1972, LB 661, § 17.
Case Notes:
1.
Mechanical act of
printing legal newspaper may be performed outside county of place of
publication. Wymore Arbor State, Inc. v. Korinek, 182 Neb. 557, 156 N.W.2d 24
(1968).
2.
Particular
requirements of this section need not be recited in printer's proof of
publication. Seymour v. Lawson, 111 Neb. 770, 197 N.W. 623 (1926).
A party against whom a judgment or order has been rendered without
other service than by publication in a newspaper, may, at any time within five
years after the date of judgment or order, have the same opened, and be let in
to defend; before the judgment or order shall be opened, the applicant shall
give notice to the adverse party of his intention to make such application, and
shall file a full answer to the petition, pay all costs, if the court requires
them to be paid, and make it appear to the satisfaction of the court, by
affidavit, that during the pendency of the action he had no actual notice
thereof in time to appear in court and make his defense; but the title to any
property, the subject of the judgment or order sought to be opened, which by
it, or in consequence of it, shall have passed to a purchaser in good faith,
shall not be affected by any proceedings under this section, nor shall they
affect the title of any property sold before judgment under an attachment. The
adverse party, on the hearing of an application to open a judgment or order, as
provided by this section, shall be allowed to present counter-affidavits, to
show that during the pendency of the action the applicant had notice thereof in
time to appear in court and make his defense. Source: R.S. 1867, Code § 82, p.
406; R.S. 1913, § 7646; C.S. 1922, § 8590; C.S. 1929, § 20-525. Case
Notes-Sufficiency of Application: Before party can have judgment opened, it
must appear that he had no actual notice of the pendency of the action in time
to make defense. McNally v. McNally, 152 Neb. 845, 43 N.W.2d 170 (1950).
Verified petition filed by parties seeking to open up judgment under this
section was equivalent to affidavit and answer required thereunder. Nelson v.
Nelson, 113 Neb. 453, 203 N.W. 640 (1925). Application was sufficient to
authorize vacation of judgment. Eno v. Lampshire, 108 Neb. 265, 187 N.W. 782
(1922). Ordinarily only party can make affidavit, but may be made by attorney
where party is nonresident. Cass v. Nitsch, 81 Neb. 228, 115 N.W. 753 (1908).On
application, defendant cannot contest sufficiency of original petition;
"full answer" means meritorious answer. Oakes v. Ziemer, 62 Neb. 603,
87 N.W. 350 (1901). To permit a defendant to open up decree, full answer to the
merits must be presented. Oakes v. Ziemer, 61 Neb. 6, 84 N.W. 409 (1900).
Defendant must show he did not have actual notice of suit in time to make
defense; adverse party may present counteraffidavits. Stover v. Hough, 47 Neb.
789, 66 N.W. 825 (1896).Party seeking to have judgment opened up must allege
and prove bona fides. McGregor v. Eastern B. & L. Assn., 5 Neb. 563, 99
N.W. 509 (1904).Motion to vacate judgment after term must tender valid defense
which court will adjudge prima facie valid. Waters v. Raker, 1 Neb. 830, 96
N.W. 78 (1901). Case Notes-Notice to Plaintiff: Appearance by party to resist
motion to vacate waives notice. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867
(1896).Proceeding is continuation of original action; service of notice on
plaintiff's attorney is sufficient. Merriam v. Gordon, 17 Neb. 325, 22 N.W. 563
(1885). Case Notes-Title to Conveyed Property: Good faith purchaser of land at
judicial sale is protected in event judgment reversed under this section.
Pauley v. Knouse, 109 Neb. 716, 192 N.W. 195 (1923); Warren v. Dick, 17 Neb.
241, 22 N.W. 462 (1885). Title of purchaser cannot be litigated in action,
except perhaps where bad faith is charged. Security Abstract of Title Co. v.
Longacre, 56 Neb. 469, 76 N.W. 1073 (1898).A purchaser of land under a judgment
subsequently opened is not a purchaser pendente lite. Scudder v. Sargent, 15 Neb.
102, 17 N.W. 369 (1883). Case Notes-Miscellaneous: One seeking to open up a
judgment secured by constructive service must act within five years and must,
by a preponderance of the evidence, show that he had no notice prior to
judgment and he must file a meritorious answer. Wittwer v. Dorland, 198 Neb.
361, 253 N.W.2d 26 (1977). This section has no relation to filing of claims
against estate. Supp v. Allard, 162 Neb. 563, 76 N.W.2d 459 (1956). This
section has no reference to a void judgment. Hassett v. Durbin, 132 Neb. 315,
271 N.W. 867 (1937). Action to redeem from tax foreclosure was commenced in
time hereunder. Walter v. Union R. E. Co., 107 Neb. 144, 185 N.W. 323 (1921).
Section is not applicable to proceedings before drainage district board. Richardson
County ex rel. Sheehan v. Drainage Dist., 96 Neb. 169, 147 N.W. 205
(1914).Relief may be granted after five years if proper petitions are presented
before expiration of time. Affidavits are amendable. Rine v. Rine, 91 Neb. 248,
135 N.W. 1051 (1912). Section does not relate to void judgments. Herman v.
Barth, 85 Neb. 722, 124 N.W. 135 (1910); Hayes County v. Wileman, 82 Neb. 669,
118 N.W. 478 (1908). Owner of land sold under scavenger tax law is not entitled
to benefits of this section as matter of right. State v. Several Parcels of
Land, 75 Neb. 538, 106 N.W. 663 (1906). Defendant who conveyed his interest by
quitclaim deed cannot move to vacate judgment. Browne v. Palmer, 66 Neb. 287,
92 N.W. 315 (1902). Acknowledgment on summons is actual personal service;
judgment cannot be opened. Cheney v. Harding, 21 Neb. 65, 31 N.W. 255
(1887).Affidavit by an attorney who has personal knowledge of the want of
"actual notice" will be sufficient to open the judgment in absence of
counteraffidavits. In re Reed v. Estate of Thompson, 19 Neb. 397, 27 N.W. 391
(1886). Opening judgment upon complying with the requirements of the statute is
a matter of right. Brown v. Conger, 10 Neb. 236, 4 N.W. 1009 (1880).
Where the action is against two or more defendants, and one or
more shall have been served, but not all of them, the plaintiff may proceed as
follows:
1.
If the action be
against defendants jointly indebted upon contract, he may proceed against the
defendant served, unless the court otherwise direct;
2.
if the action be
against defendants severally liable, he may, without prejudice to his rights
against those not served, proceed against the defendants served in the same
manner as if they were the only defendants. Source: R.S. 1867, Code § 84, p.
407; R.S. 1913, § 7648; C.S. 1922, § 8592; C.S. 1929, § 20-527.
Case Notes: 1. Action being for joint and several liability, it could proceed as
to the defendants served, under this section. Bourne v. Baer, 107 Neb. 255, 185
N.W. 408 (1921).2. Section is applicable
to proceedings to revive joint judgment. Thornhill v. Hargreaves, 76 Neb. 582,
107 N.W. 847 (1906); Clark v. Commercial Nat. Bank of Columbus, 68 Neb. 764, 94
N.W. 958 (1903). 3. Where principal on
injunction bond could not be found in county, it was proper to proceed against
surety alone. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).4. Obligors on joint bond must be joined; may
proceed against those served. Perkins County v. Miller, 55 Neb. 141, 75 N.W.
577 (1898); Young v. Joseph Bros. & Davidson, 5 Neb. 559, 99 N.W. 522
(1904).
It shall be lawful for any person, association or corporation, owning
or claiming any interest in or lien upon any real estate lying within this
state, to make and file in the office of the register of deeds of the county in
which such real estate is situated an appointment, in writing, of some person,
who shall be a resident of the county in which said lands lie, upon whom
process may be served in any suit, action or proceeding, concerning or
affecting such real estate, to which such owner or claimant shall be made a
party. Such appointment shall be acknowledged in the manner provided by law for
the acknowledgment of deeds, and shall specifically describe the lands affected
by such appointment. From and after the filing of such appointment as herein
provided, service of any writ, summons, order or notice, in any suit, action or
proceeding, concerning or affecting such real estate, shall be made upon the
person so appointed and designated in such manner as may be provided by law for
the service of process upon persons found in this state, and shall be held and
taken to be a valid and effectual service upon such owner or claimant. A copy
of such appointment, or of the record thereof, duly certified by the said
register of deeds, shall be deemed sufficient evidence thereof. No service made
by publication shall be valid in respect to any such owner or claimant, who
shall have filed an appointment under the provisions of this article; PROVIDED,
such appointment may be at any time revoked by such owner or claimant, but such
revocation shall be in writing duly acknowledged, and shall specifically
describe the lands affected by such appointment, and filed and recorded in the
office of the register of deeds of the county in which any such real property
is situated. Source: Laws 1877, § 1, p. 17; R.S. 1913, § 7649; C.S. 1922, § 8593;
Laws 1927, c. 65, § 1, p. 227; C.S. 1929, § 20-528.
The register of deeds of each county shall record such appointment
as shall be filed under the provisions of section 25-528 and any revocation
thereof in the Miscellaneous Record, shall enter such instruments in the
numerical index against the lands described therein, and shall be entitled to
demand and receive fees as provided in sections 33-109 and 33-112. Source: Laws
1877, § 2, p. 18; R.S. 1913, § 7650; C.S. 1922, § 8594; Laws 1927, c. 65, § 2,
p. 228; C.S. 1929, § 20-529; R.S. 1943, § 20-529; Laws 1984, LB 679, § 11.
When a company, firm, or unincorporated association described in
section 25-313 has its principal place of business or activity outside of this
state and does not have a usual place of doing business or activity within the
state or a clerk or general agent within the state, such company, firm, or
unincorporated association shall appoint an agent or agents in this state, and
before it is authorized to engage in any kind of business or activity in this
state, such company, firm, or unincorporated association shall file in the
office of the Secretary of State a certified statement setting forth that such
company, firm, or unincorporated association is doing business or conducting
activities in the State of Nebraska, stating the nature of the business or
activity, and designating an agent or agents within the State of Nebraska upon
whom process or other legal notice of the commencement of any legal proceeding
or in the prosecution thereof may be served. Executions issued on any judgments
rendered in such proceedings shall be levied only on property of the company,
firm, or unincorporated association. A fee of five dollars shall be paid for
filing the certified statement with the Secretary of State. If there is a
change of the agent or agents or if there is a change of street address, a
statement shall be filed with the Secretary of State stating the name of the
new agent or agents or the new street address or both. A filing fee of three
dollars shall be paid for the filing of such statement. This section shall not
apply to domestic limited partnerships and foreign limited partnerships
governed by the Nebraska Uniform Limited Partnership Act. Source: R.S. 1867,
Code § 25, p. 397; R.S. 1913, § 7595; C.S. 1922, § 8538; C.S. 1929, § 20-314;
R.S. 1943, § 25-314; Laws 1947, c. 82, § 2, p. 257; Laws 1959, c. 96, § 1, p.
414; Laws 1961, c. 109, § 1, p. 346; Laws 1974, LB 951, § 1; Laws 1983, LB 447,
§ 16; R.S.Supp.,1984, § 25-314; Laws 1989, LB 482, § 5. Cross Reference:
Nebraska Uniform Limited Partnership Act, see section 67-296. Case Notes-Right
to Serve: 1. An unincorporated
association to represent employees in collective bargaining must comply with
this section before it may bring an action in court. Nebraska Council of
Educational Leaders v. Nebraska Dept. of Education, 189 Neb. 811, 205 N.W.2d
537 (1973). 2. Prior to 1947
amendment, where unincorporated association was not formed to carry on some
trade or business, or to hold some species of property in this state, service
of process could not be properly made on such association in this state. Hurley
v. Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29 (1946). 3. Nonresident firm of attorneys, not having
office in this state, was not subject to service of process under this section.
State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d
232 (1945). 4. Where the members of a
partnership reside in another state and are not within this state, service of
summons upon the firm cannot be made in a county where it has no usual place of
business. Stelling v. Peddicord, 78 Neb. 779, 111 N.W. 793(1907).5. To authorize summons to another county,
nonresident must be bona fide defendant. Stull Bros. v. Powell, 70 Neb. 152, 97
N.W. 249 (1903). 6. Section is
cumulative, and does not prevent service on individual members of partnership.
Herron v. Cole Bros., 25 Neb. 692, 41 N.W. 765 (1889). 7. In suit to enjoin violation of federal statute
by members of partnership, federal district court for Nebraska, wherein members
resided, had jurisdiction although place of partnership's business was in
Nebraska. Sutherland v. United States, 74 F.2d 89 (8th Cir. 1934). Case
Notes-Procedure: 1. Defendant having
given other reasons for refusing to recognize plaintiff as negotiating agent
could not change ground after litigation started and base refusal on tardy
filing of certificate designating agent. Orleans Education Assn. v. School
Dist. of Orleans, 193 Neb. 675, 229 N.W.2d 172 (1975). 2. In suit against a partnership, filing
of a petition by individual partners to remove suit to federal court is not a
general appearance but a special appearance only. Security State Bank of
Norfolk v. Jackson Bros., Boesel & Co., 130 Neb. 562, 265 N.W. 747 (1936).
3. Service in an action against a
partnership may be made by copy left at the usual place of business. Wittstruck
v. Temple, 58 Neb. 16, 78 N.W. 456 (1899). 4. Where
action is brought against firm in the individual names of its members and one
member is absent from state, service upon the others is sufficient. Winters v.
Means, 25 Neb. 241, 41 N.W. 157 (1888). 5. Service
on partnership at usual place of business is sufficient. Rosenbaum & Co. v.
Hayden, 22 Neb. 744, 36 N.W. 147 (1888). Case Note-Miscellaneous: Service of process
in an action against individual members of a partnership is not governed by
this section. Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229 (1895).
As used in sections 25-535 to 25-541, person includes an
individual, executor, administrator, personal representative, corporation,
partnership, limited liability company, association, or other legal or
commercial entity, whether or not a citizen or domiciliary of this state and
whether or not organized under the laws of this state. Source: Laws 1967, c.
143, § 1, p. 439; Laws 1993, LB 121, § 167. Case Note: Under this and
succeeding sections where copies of complaint, summons, and interrogatories
were sent by registered mail to limited partnership defendant at its foreign
office, Nebraska long-arm statute was satisfied. Blum v. tes-Subject to
Jurisdiction: 1. Nonresident
defendant's conduct and connection with the State of Nebraska was such that it
reasonably should have anticipated being haled into court over plaintiff's
cause of action for the return of its loan application fee. 24th and Dodge Ltd.
v. Commercial Nat. Bank, 243 Neb. 98, 497 N.W.2d 386 (1993). 2. In order to subject a defendant to a
judgment in personam, if the defendant is not within the territory of the
forum, due process requires that such defendant have certain minimum contacts
with the forum state so that maintenance of the suit does not offend
traditional notions of fair play and substantial justice. McGowan Grain v.
Sanburg, 225 Neb. 129, 403 N.W.2d 340 (1987). 3. The establishment of a marital relationship in this state
from which a nonresident has left is sufficient minimum contact with this state
to permit a court of this state to exercise in personam jurisdiction over the
nonresident in an action to dissolve that marriage. York v. York, 219 Neb. 883,
367 N.W.2d 133 (1985). 4. Company
having an interest in, using or possessing real property in this state at a
time when it was transacting business in this state was subject to jurisdiction
of court in this state and its special appearance was properly overruled. Grand
Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d
253 (1974). 5. Nonresident
manufacturer comes under long-arm statute when it places its products in
