Ruth & Clark v. Emery

• Decision Date: 19 October 1943
• Docket Number: 46314.
• Citation: 11 N.W.2d 397,233 Iowa 1234
• Court: Iowa Supreme Court
• Parties: RUTH & CLARK, Inc., v. EMERY et al.

11 N.W.2d 397

233 Iowa 1234

RUTH & CLARK, Inc., v. EMERY et al.

No. 46314.

Supreme Court of Iowa

October 19, 1943

Frank W. Davis and Davis, McLaughlin & Hise, all of Des Moines for appellant.

Emmert James, Needham & Lindgren, Ralph N. Lynch, Strock, Woods & Dyer, George A. Kern, Holliday & Myers, David W Fletcher, Fey H. Moody, and Hallagan, Fountain, Steward &amp Cless, all of Des Moines, for appellees.

MILLER Justice.

Plaintiff's petition seeks foreclosure of mechanic's liens and a personal judgment in the sum of $695 against the defendant Fitz. The sheriff's return recited that the original notice was served upon Fitz on October 22, 1942, by leaving a copy thereof with his wife at "his usual place of residence *** said Robert Fitz not being found in Polk County, Iowa, after diligent search." Fitz filed a special appearance which asserted that the notice was left with his wife at her usual place of residence, which had not been his usual place of residence since June 26, 1942, when he was inducted into the armed forces; since then he has continually resided in army camps, posts or stations and, at the time service was made, was stationed at Jefferson Barracks, Mo., which was then his place of residence. The special appearance was supported by affidavit of counsel to the effect that Fitz was inducted into the army on June 26, 1942, has been continuously in such service and, when the original notice was served, was stationed at Jefferson Barracks, Mo., and since his induction has not been a resident of Polk County, Iowa. The special appearance was overruled. Fitz appeals to this court.

The question presented depends upon an interpretation of paragraph 2 of Section 11060, Code 1939, which provides that an original notice "shall be served as follows: *** 2. If [defendant] not found within the county of his residence, *** by leaving a copy thereof at his usual place of residence with some member of his family over fourteen years of age." This in turn depends upon an interpretation of the terms "county of his residence" and "his usual place of residence".

Under the facts asserted herein the domicile of defendant remained in Polk County. Harris v. Harris, 205 Iowa 108, 215 N.W. 661. Defendant concedes as much. Counsel state: "That defendant appellant's domicile remained in Polk County is not disputed, but his usual place of dwelling was not Polk County and had ceased to be Polk County from and after the time of his induction into the Army of the United States, and became that camp, post or station of the United States Army to which he was assigned from time to time. Accordingly, even though his domicile remained in Polk County, such fact did not make defendant appellant's 'usual place of residence' Polk County after he had become a member of the armed forces."

In further elaboration, defendant concedes that Polk County is the county of his legal residence but contends that the word "residence" used in the phrase "his usual place of residence" refers to his "actual" residence as distinguished from his legal residence or domicile. Defendant relies upon language used by us in the cases of Fitzgerald v. Arel, 63 Iowa 104, 16 N.W. 712, 18 N.W. 713, 50 Am.Rep. 733; Schlawig v. De Peyster, 83 Iowa 323, 49 N.W. 843, 13 L.R.A. 785, 32 Am.St.Rep.

308, and Des Moines Sav. Bank v. Kennedy, 142 Iowa 272, 120 N.W. 742. Plaintiff in turn relies upon Love v. Cherry, 24 Iowa 204; Nugent v. Bates, 51 Iowa 77, 50 N.W. 76, 33 Am.Rep. 117; Bradley v. Fraser, 54 Iowa 289, 6 N.W. 293; Botna Val. State Bank v. Silver City Bank, 87 Iowa 479, 54 N.W. 472, and Dickerson v. Utterback, 202 Iowa 255, 207 N.W. 752. While none of the cases precisely so holds the effect of our prior decisions seems to be that "county of his residence" herein means county of legal residence or domicile and "usual place of residence" is limited to such county.

We are here dealing with a statute which, for the purposes of this case, has appeared in the Codes from that of 1851 to that of 1939 without material change. Section 1721, Code 1851, provides for substituted service as follows: "If not found he may be served by a copy left at his usual place of residence with some member of the family more than fourteen years of age." Paragraph 2 of Section 2816, Revision of 1860, provides: "If not found within the county of his residence, by leaving a copy of the notice at his usual place of residence, with some member of the family over fourteen years of age." Paragraph 2 of Section 2603, Code 1873, is identical with the paragraph just quoted from the Revision of 1860. Paragraph 2 of Section 3518, Code 1897, is also identical therewith except that for the words, "copy of the notice", there is substituted, "copy thereof". Paragraph 2 of Section 11060, Code 1939, is more elaborate than previous statutes, but, for the purposes of this case, contains the identical words which appear in the Code of 1897. Accordingly, those cases which construe the foregoing statutes would appear to be clearly applicable to the statute now before us. We will undertake to review the cases cited by counsel herein.

In Love v. Cherry, supra, 24 Iowa 204, 208, 209, where substituted service was made at Mt. Pleasant, Iowa, while the defendant was in Texas and claimed to be a resident of Texas, this court sustained the service as valid, stating as follows: "The plaintiff had not only a residence but a domicil at Mt. Pleasant, up to November, 1860. This is not controverted. She then left for the purpose of making a visit or visits and transacting some business, and with the intention of returning in a convenient but uncertain time to her house at Mt. Pleasant. This animus revertendi was never relinquished or abandoned. Subsequent developments rendered it necessary for her to remain longer absent than she had expected. She testifies that she acquired a residence in Texas, and had to acquire such residence before she could be appointed administratrix and complete the transaction of her business. Very well; let it be conceded that she did acquire a residence in Texas for the purposes specified. The books are all agreed that a person may have several residences even, though but one domicil. She may therefore have had her residence in Texas and also in Mt. Pleasant. In the absence of clear and unmistakable evidence that she did not have a residence in Mt. Pleasant, the return itself must stand as evidence of the fact of her residence there."

Nugent v. Bates, supra, 51 Iowa 77, 50 N.W. 76, 33 Am.Rep. 117, involved the question of domicile only for the purpose of assessing personal taxes.

Bradley v. Fraser, 54 Iowa 289, 291, 6 N.W. 293, 294, involved a statute relating to jurisdiction of a justice of the peace. Defendant was personally served in Clayton County. The notice was returnable before a justice of the peace of that county. In holding that the justice had no jurisdiction we state: "Day, J. Section 3507 of the Code provides: "The jurisdiction of the justices of the peace, when not specially restricted, is co-extensive with their respective counties, but does not embrace suits for the recovery of money against actual residents of any other county. ***' [Italics supplied.] On the first day of June, 1878, Bach was a resident of Buchanan county. Did he, because of the existence of the facts found by the court, cease to be an actual resident of that county? He went to Clayton county with his family to build a school-house, under a contract, intending to return as soon as the job was finished, and during the time he was in Clayton county he held this intention and regarded Buchanan county as his residence and home, and his stay in McGregor as temporary. Under these circumstances he continued, in the most enlarged sense of the term, a resident of Buchanan county. *** Bach, notwithstanding his temporary stay in Clayton county, continued to be an actual resident of Buchanan county.

Under section 3507 of the Code, the jurisdiction of a justice of the peace of Clayton county did not extend to him."

Fitzgerald v. Arel, supra, 63 Iowa 104, 16 N.W. 712, 18 N.W. 713, 50 Am.Rep. 733, upon which defendant places great reliance, involved an interpretation of the same statute as did Bradley v. Fraser, supra. This court undertook to distinguish both Love v. Cherry, supra, and Bradley v. Fraser, supra, without apparently recognizing that Love v. Cherry involved a different statute. Defendant herein places great stress upon the fact that this court emphasizes the necessity of actual residence. But, as shown in the quotation from Bradley v. Fraser, supra, the statute relative to jurisdiction of a justice of the peace depended upon actual residence whereas that term has never been incorporated in the statute relating to substituted service.

In Schlawig v. De Peyster, supra, 83 Iowa 323, 325, 326, 49 N.W. 843, 13 L.R.A. 785, 32 Am.St.Rep. 308, in holding that substituted service on a member of defendant's family at Sioux City Iowa, did not confer jurisdiction, we state: "The record very satisfactorily shows that about 18 months before the service of the notice defendant, who then lived with his family in Sioux City went to the Black Hills, intending to make his home there. He left his family consisting of a wife and children in Sioux City, intending to remove them to the Black Hills as soon as he could do so. He engaged in mining and other business in the Black Hills, and built a house, shop, and other buildings there. He voted at the elections and sat upon juries and discharged other duties of a citizen, but did not remove his family there, though continually intending so to do. He visited his family about two years after he went to the Black Hills, and repeated the visit at long intervals. He never abandoned his purpose of...