Fratt v. Wilson
| Decision Date | 05 April 1897 |
| Parties | FRATT v. WILSON. [1] |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.
Action by Francis Fratt against H.C. Wilson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
A.S. Hammond, for appellant.
Wm. M Gregory, for respondent.
The defendant, a resident of California, was sued in Multnomah county in an ordinary action to recover money, and service made upon him while temporarily in Lake county, and the sole question to be determined on this appeal is whether the judgment subsequently rendered by default is void for want of jurisdiction. The contention for the defendant is that personal service of a summons in this state on a nonresident in a transitory action, does not confer jurisdiction of his person, unless made in the county where the action is pending, while the plaintiff claims that the action may be commenced in any county which the plaintiff may designate in his complaint, and service be made elsewhere in the state. The statute regulating the place of trial of such actions provides that they "shall be commenced and tried in the county in which the defendants or either of them reside, or may be found, at the commencement of the action; or if none of the parties reside in this state, it may be tried in any county which the plaintiff may designate in his complaint." Hill's Ann.Code, § 44. In Brown v Bridge Co., 23 Or. 7, 35 P. 177, and in Dunham v Shindler, 17 Or. 256, 20 P. 326, it was held that a transitory action against a resident of the state must, under this statute, be commenced in the county where he resides or is found at the commencement of the action, or the judgment is a nullity; and the defendant claims that all persons personally present in the state, whether temporarily or not, are residents of the county in which they are found, for jurisdictional purposes and under these decisions can be sued only in such county. In support of this position his counsel cite several authorities to the effect that the bodily presence of a nonresident is equivalent to residence for jurisdictional purposes. Alley v. Caspari, 80 Me. 234, 14 A. 12; Murphy v. Winter, 18 Ga. 690; Thompson v Cowell, 148 Mass. 552, 20 N.E. 170. These authorities only announce the familiar and universally recognized doctrine that a citizen of one state, upon going voluntarily into another, submits himself to the jurisdiction of the courts of the latter. The question before us, however, is not whether process served upon a nonresident while temporarily in the state will confer jurisdiction of his person, but whether such process can be served out of the county in which the action is pending, and therefore...
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