Honeycutt v. Nyquist, Petersen & Co.

• Decision Date: 03 November 1903
• Citation: 74 P. 90,12 Wyo. 183
• Parties: HONEYCUTT v. NYQUIST, PETERSEN & CO
• Court: Wyoming Supreme Court

74 P. 90

12 Wyo. 183

HONEYCUTT v. NYQUIST, PETERSEN & CO

Supreme Court of Wyoming

November 3, 1903

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

Action by Nyquist, Petersen & Co. against J. V. Honeycutt and another to recover a money judgment. The plaintiff sued out an attachment at the commencement of the action, and recovered a judgment against defendant Honeycutt, who thereupon prosecuted error. The material facts are stated in the opinion.

Judgment affirmed.

C. P Arnold, for plaintiff in error.

The attachment was secured on the ground of the non-residence of the defendant, and yet the summons was served at his usual place of residence. The defendant cannot be held a non-resident so as to authorize attachment, and a resident at the same time to authorize substituted service of summons. In fact, the defendant was a non-resident. He was temporarily within the State, living in a tent, and there was no authority for substituted service. The tent was not his residence. (White v. Primm, 36 Ill. 416; Blyth v. Hickley, 84 F. 228; Ames v. Winsor, 19 Pick., 247.) A man can have but one usual place of residence and within the meaning of the statute authorizing substituted service, the residence must be the legal residence; and "domicile" and "residence" under such statutes are synonymous terms. (Wood v. Roeder, 45 Neb. 311; Bradley v. Frazer, 54 Ia. 289; Campbell v. White, 22 Mich. 178; Grant v. Jones, 39 O. St., 515; Church v. Crossman, 49 Ia. 444; Gardner v. Board, 5 Dak., 259; 10 Ency. Law (2d Ed.), 9.)

The service was void for the additional reason that the defendant was sued by initials and not by his true name. (R. S., Secs. 3533, 3484, 3592; Scofield v. Jennings, 68 Ind. 233; Enewold v. Olson, 39 Neb. 59; 14 Ency. Pl. & Pr., 273; Perkins v. McDowell, 3 Wyo., 328; Slocum v. McBride, 17 O., 607.)

The acceptance of service of the motion to sell attached property was not a general appearance. The acceptance of service merely obviated the necessity of making service, and had service been made it would not have conferred jurisdiction of the defendant in the action. It is no part of the duty of an attorney to admit service for his client. (Starr v. Hall, 87 N. C., 381; 3 Ency. Law, 323.) Neither did the presence of defendant with his attorney in the court room confer jurisdiction to render personal judgment against defendant. They had a right to be there as spectators without incurring such consequences. They had a right also to object to any action being taken because the action had not been properly brought, and to assent to a postponement of the hearing because the court was otherwise engaged. They did not ask for a continuance, and the motion did not affect the merits of the action. An appearance is the process by which a person, against whom a suit has been brought, submits himself to the jurisdiction of the court. (1 Daniels Ch. Pl. & Pr., 536.) It is a submission to the jurisdiction in obedience to the process. (Grigg v. Gilmer, 54 Ala. 430; Shirley v. Hagar, 3 Blackf., 225; Norblett v. Farwell, 38 Cal. 155; Talpey v. Doane, 3 Colo., 22.) The actions of defendant did not amount to an appearance. (Crary v. Barber, 1 Colo., 172.) The defendant did not ask the aid of the court in any way, and hence it cannot be held that he submitted himself to the jurisdiction of the court. This case is to be distinguished from those cases holding a defendant to have entered an appearance by filing a motion which is not limited to matters of jurisdiction.

N. E. Corthell, and Burke & Clark, for defendants in error.

If the temporary residence of the defendant below should be considered within the scope of the statute for substituted service, then the service was sufficient. (Leonard v. Stout, 8 Vroom, 495.) But the defendant several times entered his voluntary appearance and thus became subject to the jurisdiction of the court. (R. S., Sec. 3515; Jenkins v. Jeffrey, 3 Wyo., 669; Bank v. Anderson, 6 id., 518.) An appearance is presumed to have been general unless shown by the record to be special. It may consist in any act indicating that the party submits himself to jurisdiction, or participates in the proceedings in any way, or otherwise recognizes the action as pending and acts on that theory. (3 Ency. Pl. & Pr., 502-514; 2 id., 590, 632.) An appearance may be evidenced by filing a pleading, notice, motion; by consent to a hearing, a continuance, a change of venue, a removal or other order; it may be expressed or implied, in person or by attorney; an appearance for any other purpose than to object to the jurisdiction of the court is general. (Car Co. v. Ry. Co., 53 Minn. 129; Wood v. Young, 38 Ia. 106; Frank v. Leigh, 33 S. E., 762; Raymond v. Nix (Okl.), 49 P. 1111; Gorham v. Tanquerry (Kan.), 48 id., 916; Elliot v. Lawhead, 43 O. St., 171; Handy v. Ins. Co., 37 id. , 366; Ulner v. Hiatt, 4 G. Greene, 439; Clark v. Blackwell, id., 441; Ausbach v. Ferguson, 71 Ia. 144; Baisley v. Baisley, 113 Mo. 544; Bazzo v. Wallace, 16 Neb. 290; Stevens v. Ins. Co., 29 id., 187; Thompson v. Pfeiffer (Kan.), 71 P. 828; Crowell v. Galloway, 3 Neb., 215; Aultman v. Steiman, 8 id., 109; Long v. Newhouse, 57 O. St., 348; Reed v. Chilson, 142 N.Y. 152; Olcott v. McLean, 73 id., 223; Keeler v. Keeler, 25 Wis. 552.)

Where a party, as in this case, asks to have the case dismissed, it is a general appearance. (Bucklin v. Strickler, 32 Neb. 602; Handy v. Ins. Co., 37 O. St., 366; Mahohn v. Marshall, 29 id., 611; Abbott v. Semple, 25 Ill. 107; R. R. Co. v. Combs, 13 Ind. 490.)

The objection to the name by which he is sued raised by defendant is proper subject of a plea in abatement, and further he asked that the case be dismissed. The appearance in the attachment proceeding amounted to a general appearance. His attorney had a right to represent him, and this includes the right to even accept service of summons. (Hendrix v. Fuller, 7 Kan., 331; Taylor v. Sutton, 6 La. Ann., 709; Backus v. Burke, 62 Minn. 272; Felder v. Johnson, 1 Bailey, 624; Marling v. Robrecht, 13 W.Va. 440.)

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

The defendants in error brought this suit in the District Court for Albany County against J. V. Honeycutt and Ellis Robb upon two causes of action to recover a money judgment. The first cause of action was founded upon an account stated, and the second upon an account for goods sold and delivered. A writ of attachment was sued out at the commencement of the action and certain personal property was levied on, consisting generally of horses, wagons and property belonging to a grading outfit. The sheriff's return upon the summons showed that service thereof upon defendant Honeycutt had been made by leaving a copy at his usual place of residence with a person in his employ over the age of 14 years. Said defendant filed a motion to quash the service of summons and dismiss the action, alleging that he appeared specially and for the purposes of the motion only. The motion was based on six grounds, as follows:

"1. A copy of the summons was not served upon this defendant.

"2. A copy of said summons was not left at the usual place of residence of the said defendant.

"3. That said defendant, at the time of the alleged service of the summons herein, was and ever since has been a non-resident of the State of Wyoming, and did not then have and does not now have a place of residence in the said County of Albany.

"4. That it is not true that a copy of the summons issued herein was left at the usual place of residence of said defendant.

"5. That the court acquired no jurisdiction over this defendant by the pretended service of summons in this action.

"6. That the said defendant is not sued by his true name, and that the true name of said defendant is James V. Honeycutt."

The motion was supported by attached affidavits setting forth that the defendant's true name was James V. Honeycutt, and that he was a resident of the Territory of Oklahoma, but was temporarily within Albany County, in this State, engaged in temporary employment in construction work along the line of the Union Pacific railroad, and had no permanent place of abode within the county.

On the hearing of the motion the defendant offered in evidence the affidavit for attachment, which alleged that he was a non-resident of this State, also the affidavits attached to the motion, and two additional affidavits to the effect that the full name of the defendant was James Vernon Honeycutt; that he was a bona fide resident of Oklahoma Territory; that in June, 1900, he went to Albany County temporarily and located a railroad camp, known as the Honeycutt camp, and engaged in work on the railroad with a grading outfit, remaining there until some time in September, 1900, and at said camp had two tents, one used for sleeping and the other for eating; but that he never established a residence in the State.

The plaintiffs submitted the affidavits of two persons to the effect that they had known the defendant for more than two months while he had been in Wyoming, and that he had been commonly called and known as J. V. Honeycutt, and not as James V. or James Vernon Honeycutt. The plaintiffs introduced also a motion filed by them for an order to sell the attached property, and an acceptance of service thereon endorsed.

Thereupon the motion to quash service and dismiss the action was denied, and defendant excepted. The order denying the motion recites that on the 23d day of August 1900, the defendant, by his attorney, accepted service of notice of the plaintiff's motion for an order to sell attached property; and in response to said notice said defendant, with his said attorney, appeared in court, and the court being...