Swick v. Coslor , 194 Neb. 781 ( 1975 )

235 N.W.2d 639 (1975) 194 Neb. 781

Oscar SWICK, Administrator of the Estate of Kevin Oscar Swick, Deceased, Appellant,
v.
Gerald COSLOR, Appellee.

No. 40123.

Supreme Court of Nebraska.

December 4, 1975.

Padley & Dudden, P.C., Ogallala, for appellant.

Maupin, Dent, Kay, Satterfield, Girard & Scritsmier, Dale A. Romatzke, North Platte, for appellee.

Heard before SPENCER, McCOWN and NEWTON, JJ., and COLWELL and IRONS, District Judges.

IRONS, District Judge.

The plaintiff filed his petition in the District Court for Custer County, Nebraska, praying among other things general damages in a dollar amount of $100,000 and caused the summons to be issued with an endorsement including the $100,000 figure for recovery of general damages if the defendant defaulted.

There is no dispute that the summons was issued and served upon the defendant.

The defendant filed a special appearance for the sole purpose of objecting to the jurisdiction of the court for the reason that the summons was invalid and void. Thereafter the court sustained the defendant's special appearance and plaintiff appeals.

The only question for consideration here is whether the inclusion of a dollar amount for general damages in the petition in light of the language of section 25-804, R.S.Supp., 1973, and section 25-503, R.R.S.1943, relating to service of summons is sufficient to declare the summons void.

A special appearance must be confined to an attack on the jurisdiction of the court on the validity of the summons and its service. Abel v. Southwest Cas. Ins., Co., 182 Neb. 605, 156 N.W.2d 166.

In the present case the service is not in dispute, and the special appearance attacks only on the ground of the inclusion of a dollar amount for general damages.

Other than for this inclusion the plaintiff has fully complied with the requirement of section 25-804, R.S.Supp., 1973, and the defendant was fully informed of the action against him and was in no way deceived. Any error by the plaintiff in stating a dollar amount of general damage did not affect any substantial right of the defendant.

The order of the District Court in sustaining the defendant's special appearance is reversed and the cause remanded to the District Court for further proceedings.

Reversed and remanded.

COLWELL, District Judge, concurs in result.