Keisel v. Reynolds
| Decision Date | 08 December 1925 |
| Docket Number | 12896. |
| Citation | 244 P. 1104,125 Okla. 295,1925 OK 990 |
| Parties | KEISEL v. REYNOLDS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the affidavit to obtain service of summons by publication recites that the defendant is a nonresident of the state of Oklahoma, and that service of summons cannot be made on said defendant with due diligence within the state of Oklahoma because of the fact that the defendant is now, and was at the time of filing this suit, a resident of the state of California, and resides, as affiant verily believes, in Los Angeles, and that his business and residence address in said city of Los Angeles is wholly unknown to this affiant, and your affiant further states that she wishes to obtain service on said defendant by publication, held, such affidavit is sufficient to authorize and sustain a proper publication of summons under section 4722, R. L. O. 1910 (section 250, C. O. S. 1921).
Where the plaintiff files her action for the recovery of money, and on the same day files her affidavit to obtain service upon a nonresident defendant by publication, and upon the following day publication is made, and the defendant thereafter appears specially and moves the court to quash the affidavit and the pretended service by publication, and the court, more than 60 days after the filing of the petition and the pretended service, sustains the motion to quash, and within 30 days thereafter plaintiff, by leave of the court, files her second affidavit for service by publication, and makes her first publication on the day following the filing of the second affidavit, held, the second affidavit and publication relates back to the date of the filing of the action, and the action will be deemed to have been commenced at the time of the filing of the first affidavit and publication made thereon.
Where a guest at a hotel checks out, gives up her room, and pays her bill, she is no longer a guest at such hotel, and where after she ceases to be such guest, she asks and obtains permission to leave her trunks at the hotel, and directs them to be placed in the baggage room, the proprietor of the hotel is a gratuitous bailee, as provided by section 1104, R. L. O 1910 (section 5201, C. O. S. 1921).
Section 1106, R. L. O. 1910, provides (section 5203, C. O. S. 1921) "A gratuitous bailee must use at least slight care for the preservation of the thing bailed," and section 2917, R. L. O. 1910 (section 3531, C. O. S. 1921), defines slight care as follows: "Slight care or diligence is such as persons of ordinary prudence usually exercise about their own affairs of slight importance." Held, where the evidence proves, or reasonably tends to prove, a gratuitous bailment, it is error in the court to refuse to give to the jury instructions prepared and requested by the defendant, defining gratuitous bailment, and the degree of care to be exercised by a gratuitous bailee.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by Jewel Reynolds against H. C. Keisel, as proprietor of the Bristol Hotel, and another, to recover the value of a trunk and its contents. Judgment for the plaintiff against H. C. Keisel, and he appeals. Reversed and remanded.
D. S. Levy, of Oklahoma City, for plaintiff in error.
Robertson & Lillard and A. E. Allen, all of Oklahoma City, for defendant in error.
The parties hereto will be designated as they appeared in the trial court.
Plaintiff sued defendants, alleging H. C. Keisel was the proprietor of the Bristol Hotel, in Oklahoma City; that plaintiff was a guest of the hotel, and, on "checking out," asked and received permission to leave her trunk in the baggage room of the hotel, and upon calling for it some days later the trunk was not to be found; hence this action for the value of the trunk and contents.
Affidavit for service by publication and attachment was filed on March 26, 1920. Defendant appeared specially, and filed this motion to quash the service by publication, which motion was by the court sustained on June 19, 1920. On July 15, 1920, plaintiff filed her affidavit for service by publication and attachment of the Bristol Hotel property. The property was attached and appraised, and its value placed at $90,000.
Defendant appeared specially, and moved the court to quash the summons by publication and the service thereof and the affidavit to procure the same, "for the reason that the same is illegal and void, in that said affidavit to obtain such service by publication does not show that at the time of the making and filing of the same that this defendant could not be served with summons in the state of Oklahoma, or was not in the state of Oklahoma at such time."
Defendant further moved the court to discharge the attachment and dismiss the action, for that the petition in this cause having been filed March 26, 1920, and service by publication and attachment having been quashed by the court June 19, 1920, and the plaintiff having filed a new affidavit for service by publication and for attachment on July 15, 1920, defendant moved to quash the second affidavit and publication, discharge the attachment, and dismiss the action, for that there was no action pending or commenced at the time of filing the second affidavit or at the time of the first publication on July 16, 1920, and, this action being for the recovery of money against the defendant, purporting to be a nonresident of this state, and the affidavit for service by publication having been filed, and service of summons by publication having attempted to be made and the order of attachment in the case having been issued at the time when no action against the defendant was pending, the court was without jurisdiction of the action or of the defendant.
The motions to quash and dismiss being by the court overruled, answer was filed, the cause tried to a jury, a verdict returned for plaintiff, fixing her damages at $400, and defendant appeals, and assigns as error the action of the court in overruling defendant's motion to quash affidavit, summons, service, attachment, and to dismiss the action.
The affidavit to obtain service by publication contained the following:
"Affiant further states that defendant, H. C. Keisel, is a nonresident of the state of Oklahoma, and that service of summons cannot be made on said defendant, with due diligence within the state of Oklahoma, because of the fact that the defendant is now, and was at the time of filing this suit, a resident of the state of California, and resides, as affiant verily believes, in Los Angeles, and that his business and residence address in said city of Los Angeles is wholly unknown to this affiant, and your affiant further states that she wishes to obtain service on said defendant by publication."
Defendant contends this affidavit is fatally defective and insufficient, in that it does not show or state that, while the defendant might be a nonresident of the state of Oklahoma and a resident of California, he could not be served with a summons in the state of Oklahoma, and does not show that defendant is not now within the state, or that he is a nonresident and cannot be served with summons in the state. There is no merit in defendant's contention. The affidavit specifically states that the defendant is a nonresident of this state, and is a resident of California, and cannot with due diligence be served with summons in this state. It is impossible in this day of rapid transportation to definitely state where the physical body of a man may be within a few hours after he leaves your actual presence, or goes without the range of your vision, and a plaintiff is not required to issue a summons in every county in this state and have the sheriff make a house to house canvass in an effort to locate the defendant. The law does not contemplate such an absurdity. Cases are cited wherein it was held the affidavit was fatally defective for the reason that it failed to state the facts showing that the defendant could not be served by the exercise of due diligence, but the cases cited, to wit, Griffin v. Jones, 147 P. 1024, 45 Okl. 305; Spaulding v. Polley, 115 P. 864, 28 Okl. 764; Fenton v. Burleson, 124 P. 1087, 33 Okl. 230; Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L. R. A. (N. S.) 1084; Cordray v. Cordray, 91 P. 781, 19 Okl. 39-were decided under the law in force prior to the time the Revised Laws 1910 became effective.
-and this court held that under these sections it was necessary to state the facts constituting the diligence, but the Legislature amended the act relating to affidavits to obtain service by publication by inserting the words " or where it is stated in the affidavit for service by publication" that the plaintiff with due diligence is unable to make service of summons upon such defendant or defendants within the state. Prior to the amendment embodying the italicized words, it was necessary to set forth the facts constituting the diligence used, but it is manifest the Legislature by this amendment intended to simplify the affidavit by making it unnecessary to state the facts constituting the diligence used, and this appears to be the trend of the opinions since the...
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