Ensign v. Roggencamp , 13 Neb. 30 ( 1882 )

Lake, Ch. J.

^ . The court obtained jurisdiction of the defendant below by the service of the last of the several writs issued against him. Its issue without an order.of the court -for an alias summons may have been irregular, but it was not void. If the defendant desired to test its regularity he should have appeared in court in obedience to its command and brought his grievance promptly to the attention of the judge. But not having done so, it is now too late to complain. If, perchance, there were a technical error respecting the summons it cannot be said that he was at all prejudiced by it.

Section 67 of the code of civil procedure provides that :

' “When a writ is returned Licit s mummed/ other writs may be issued until the defendant, or defendants, shall be summoned,” etc. To proceed regularly under this provision, the clerk, without an order of the court to that effect, ought not to issue an alias summons except upon such return having been made to the first one by the proper officer, or person appointed to serve it. “ The court,” says the code, sec. 145, “in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or alected by reason of such error or defect.” The error in question falls clearly within the operation of this provision and must be disregarded.

Another matter urged as error is that the petition does not state facts sufficient to constitute a cause of action. This point is based chiefly upon the want of an averment that the mortgage under which the plaintiff claimed the goods converted by'fhe defendant was made in good faith and without any intent to defraud creditors of the mortgagor. We do not think such averment necessary. Until the bona fieles of the parties to the instrument is attacked by one claiming adversely the statutory presumption of fraud arising from the retention of possession by the mortgagor does not attach. "The question of fraudulent intent in all cases,” says the statute, "shall be deemed a question of fact, and not of law,” etc. Comp. Stat., 289. Therefore, if the creditor of a mortgagor of goods claim them adversely to the mortgagee, on the ground of fraud, he must allege it by proper pleading in order to succeed. Turner, Frazer & Co. v. Killian, 12 Neb., 580. As between the mortgagor and the mortgagee, the petition shows that "the latter had good title to the property, and that the title of the mortgagee — the defendant in error — accrued to him long prior to the .seizure and conversion by the plaintiff in error under his execution.

Judgment affirmed.