§ 25-321 — Unknown defendants; how designated

Nebraska § 25-321

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name, or any name and description, followed by the words, "real name unknown". In any such case the person intended shall thereupon be regarded as a defendant in such action or proceeding and as sufficiently identified therein for all purposes, including service of summons or constructive service when authorized and as prescribed in Chapter 25. In any action wherein it is alleged in the complaint or other pleading that there are persons who have or that there are persons who claim or appear to have some interest in, right or title to, or lien upon any real or personal property within this state involved in such action, and that the ownership of, interest in, rights or title to, or lien upon such property of such persons, does not appear of record, in or by their respective names, in the county wherein such property is situated, and that the plaintiff or person in whose behalf such allegations are made, after diligent investigation and inquiry, is unable to ascertain and does not know the names or whereabouts if in this state, or the residence of such persons, such action may proceed against all such persons designated as "all persons having or claiming any interest in" such property which shall be accurately and definitely described, followed by the words, "real names unknown".

Legislative History

Source: R.S.1867, Code § 148, p. 416; R.S.1913, § 7602; Laws 1915, c. 142, § 1, p. 310; Laws 1917, c. 138, § 1, p. 325; Laws 1921, c. 226, § 1, p. 815; C.S.1922, § 8545; C.S.1929, § 20-321; R.S.1943, § 25-321; Laws 1983, LB 447, § 17; Laws 2002, LB 876, § 7. Annotations: 1. Designation of defendants 2. Service 3. Miscellaneous 1. Designation of defendants In suit to quiet title against all persons having or claiming interest in designated lands, a default decree is conclusive against all persons not in possession or record holders thereof. State ex rel. Conkey v. Ryan, 136 Neb. 334, 285 N.W. 923 (1939). Legal name of defendant includes his first Christian name, and surname or patronymic; affidavit and published summons must contain these, not initials. Nelson v. Sughrue, 93 Neb. 480, 140 N.W. 800 (1913); Butler v. Smith, 84 Neb. 78, 120 N.W. 1106 (1909); Herbage v. McKee, 82 Neb. 354, 117 N.W. 706 (1908); Stull v. Masilonka, 74 Neb. 309, 104 N.W. 188 (1905), rehearing denied, 74 Neb. 322, 108 N.W. 166 (1906); Gillian v. McDowall, 66 Neb. 814, 92 N.W. 991 (1902); Enewold v. Olsen, 39 Neb. 59, 57 N.W. 765 (1894). In constructive notice in suit to foreclose mortgage, legal name includes first Christian name and surname. McCabe v. Equitable Land Co., 88 Neb. 453, 129 N.W. 1018 (1911); Butler v. Smith, 84 Neb. 78, 120 N.W. 1106 (1909). 2. Service Service by publication did not bind parties in actual possession of land. Thomas v. Flynn, 169 Neb. 458, 100 N.W.2d 37 (1959). Where statute has been followed, service by publication is conclusive against all persons except those in actual possession. Durfee v. Keiffer, 168 Neb. 272, 95 N.W.2d 618 (1959). Parties in actual possession of easement were not subject to service under this section. Jurgensen v. Ainscow, 155 Neb. 701, 53 N.W.2d 196 (1952). Where there is no service, or insufficient service, judgment against the person is void. Henze v. Mitchell, 93 Neb. 278, 140 N.W. 149 (1913). A court acquires jurisdiction over defendant by personal service of process, even though he be defectively described therein. Wm. Krotter & Co. v. Norton, 84 Neb. 137, 120 N.W. 923 (1909). Where defendant sued by his initials only files answer, it is waiver of defect in service. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896). Applies to given name and surname; where either is unknown, there must be actual personal service. Enewold v. Olsen, 39 Neb. 59, 57 N.W. 765 (1894). 3. Miscellaneous Statement must be made in verification to petition or affidavit that plaintiff could not discover true name. Stratton v. McDermott, 89 Neb. 622, 131 N.W. 949 (1911). To be ignorant of either the given name or a surname of a person is to be ignorant of a person's name within this section. McNamara v. Gunderson, 89 Neb. 112, 131 N.W. 183 (1911).