Amsbaugh v. Exchange Bank

• Decision Date: 07 January 1885
• Citation: 5 P. 384,33 Kan. 100
• Parties: W. H. AMSBAUGH v. EXCHANGE BANK OF MAQUOKETA, IOWA
• Court: Kansas Supreme Court

5 P. 384

33 Kan. 100

W. H. AMSBAUGH v. EXCHANGE BANK OF MAQUOKETA, IOWA

Supreme Court of Kansas

January 7, 1885

Error from Morris District Court.

THE opinion states the nature of the action, and the facts. At the April Term, 1884, the plaintiff bank, on the two causes of action stated in its petition, recovered a judgment against defendant Amsbaugh for $ 1,361.86 and costs. New trial denied. The defendant brings the case to this court.

Judgment reversed and cause remanded.

T. N Sedgwick, for plaintiff in error.

Buck & Feighan, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This action was commenced in the district court of Morris county, by the Exchange bank of Maquoketa, Iowa, against W. H. Amsbaugh, of Dunlap, Kansas, to recover the amount of two certain judgments rendered against the defendant in the circuit court of Jackson county, Iowa. The defendant set up the defense that these judgments were rendered without any notice to him, without any appearance on his part, and, indeed, without any jurisdiction whatever as to him personally; and therefore he claims that said judgments are void. The case was tried by the court below without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff and against the defendant for the amount of the judgments. The defendant brings the case to this court for review.

It appears from the special findings of fact that on November 4, 1878, and prior thereto, the defendant, with his wife, resided in the city of Maquoketa, in Jackson county, Iowa; that on that day he left the state of Iowa, intending to make Texas or Kansas his home and never to return to Iowa; and he finally, and on April 5, 1879, settled at Dunlap, Morris county, Kansas, and has never returned to Iowa. When he left Iowa, be left his wife residing in Maquoketa, in the same house where they had formerly resided together prior to his departure; and she continued to reside until the spring of 1879, when she also left Iowa, intending never to return; and she immediately joined her husband in Kansas. When the defendant left Iowa on November 4, 1878, some of his household goods were already packed for shipment, and when his wife left they were all either sold or shipped. The actions in Iowa in which said judgments were rendered were commenced as follows: The first action was commenced on November 9, 1878, and the other was commenced on November 12, 1878. An "original notice" answering to a summons, was served in each action as hereinafter stated. The first notice was served on November 12, 1878, and the other was served on November 14, 1878; and the sheriff who served the same states in his return that he served them by delivering a copy thereof to the wife of the defendant at the defendant's "usual place of residence." A copy of each notice was in fact left by the sheriff with the defendant's wife, at the house where the defendant had resided up to November 4, 1878, and where the defendant's wife was still living; and the service was not made in any other manner. An attachment was also procured in each action at its commencement, upon the following ground, as stated by the plaintiff in his petition therefor: "And your petitioner further states, that said defendant has absconded, so that the ordinary process cannot be served upon him." The defendant never appeared in either of said actions, and never authorized any appearance for him; and no one did in fact appear for him, although the record of each judgment shows that counsel did appear for him. The defendant did not in fact have any knowledge or notice of the commencement or existence of either action until long after the judgments therein were rendered against him.

The question now arises, are these judgments such personal judgments against the defendant that they may be enforced against him personally by an ordinary action upon them outside of the jurisdiction in which they were rendered, and in Kansas? Several days prior to the commencement of these actions, the defendant had passed outside of and beyond the jurisdiction of the state of Iowa, where these judgments were rendered, and has never since returned within such jurisdiction, and has never since voluntarily or otherwise surrendered jurisdiction to the state of Iowa of either his person or his property by any appearance in the courts of Iowa, or otherwise. This it would seem ought to be decisive of any question involved in this case; for a judgment rendered without jurisdiction is everywhere held to be void. But it is claimed that the defendant still had a residence within the state of Iowa, and within the jurisdiction of the court which rendered the foregoing judgments when the aforesaid notices were served, and that they were served in accordance with the laws of Iowa, so as to obtain jurisdiction of his person, by delivering copies thereof to his wife at such residence. They were not served upon him personally, however, nor served while he was within the jurisdiction of the court or within the jurisdiction of the state; and service at his residence, or otherwise, unless it can be held to be a service upon him personally, cannot bind him personally, ( Mitchell v. Gray, 17 Ind. 123; Sallee v. Hays, 3 Mo. 116;) and service merely upon his wife is not sufficient. (Moore v. Wade, 8 Kan. 380.)

It is admitted that the service was made by delivering copies to the defendant's wife; but it is denied by the defendant that the place where the notices were served, and where he had formerly lived, was at the time of the service his "usual place of residence," or his place of residence at all. We suppose that a resident of a state intending to leave it permanently, will nevertheless continue to be a resident of the state, at least for some purposes, until he passes beyond the boundaries of the state; ( Ballinger v. Lantier, 15 Kan. 608;) though it is held in Virginia that such a person would become a non-resident of the state as soon as he started to remove therefrom. (Clark v. Ward, 12 Gratt. 440.) And in Iowa it is held that a resident of a state intending to remove from one county therein to another county therein, would become a non-resident of the state as soon as he passed from the county of his residence into an intervening county, and before he had reached the county in which he intended to make his future residence, although at no time had he passed beyond the boundaries of the state. ( Cohen v. Daniels, 25 Iowa 88.) And certainly after a resident of a state intending to remove therefrom has passed beyond the boundaries of his state, he is no longer a resident of the state, but is a non-resident thereof. ( Ritter v. Phoenix Mutual Life Ins. Co., 32 Kan. 504, 4 P. 1032.) And a service of a notice at a person's former place of...