Mounts v. Mounts
| Decision Date | 24 March 1967 |
| Docket Number | No. 36499,36499 |
| Citation | 149 N.W.2d 435,181 Neb. 542 |
| Parties | Lorraine S. MOUNTS, Appellant, v. Dayton Robert MOUNTS, Appellee, William W. Griffin, Garnishee-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A state has judicial jurisdiction over an individual who is domiciled in the state.
2. A domicile once established continues until it is superseded by a new domicile.
Frank J. Roubicek, Roscoe L. Rice, Creighton, Rice & Efron Minneapolis, Minn., for appellant.
William W. Griffin, O'Neill, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH and McCOWN, JJ., and KOKJER, District Judge.
In question is the validity of a personal judgment that a Minnesota court ordered on default by defendant. Jurisdiction was based on domicile.
In the present proceeding plaintiff petitioned for registration of the judgment. The district court concluded that the judgment was unenforceable, quashing a summons in garnishment and dismissing the petition. Plaintiff has appealed. The garnishee argues that the judgment may not be enforced for two reasons: Defendant was not domiciled in Minnesota, and the affidavit for constructive service did not satisfy a condition precedent to the exercise of jurisdiction.
The Minnesota court assumed jurisdiction under the following rule: 'The summons may be served by * * * published notice in * * * the cases enumerated * * * when there shall have been filed * * * an affidavit of the plaintiff * * * stating the existence of one of such cases, and that he believes the defendant is not a resident of the state, or cannot be found therein, and either that he has mailed a copy of the summons to the defendant at his place of residence or that such residence is not known to him. * * *
'Such service shall be sufficient to confer jurisdiction: (1) When the defendant is a resident individual having departed from the state with intent to defraud his creditors, or to avoid service, or keeps himself concealed therein with like intent; * * *.' Rules Civ.Proc., rule 4.04, 27A M.S.A.
Plaintiff and defendant as wife and husband had made their permanent home in Polk County, Minnesota, for some time up to May 1950. In that month defendant deserted plaintiff and their three minor children. In September 1951, the district court for Polk County granted her an absolute divorce. Almost 14 years later she filed a complaint against defendant in the district court for Hennepin County, Minnesota. She alleged a right to recover the reasonable value of support that she had furnished to the minor children from 1950 through 1964. She filed with her complaint her affidavit as follows:
'* * * in 1950 defendant was a resident of this State and either concealed himself within the State or departed from the State to avoid support of his minor children; * * * since that time the plaintiff has made repeated attempts to locate the defendant * * * in order to force defendant to support his minor children; * * * the attorneys for plaintiff have made similar attempts to enforce defendant's support obligation; * * * defendant departed the State with the intent to defraud his creditors, namely plaintiff * * *; * * * plaintiff's attorneys have mailed copies of the summons and complaint herein to * * * (defendant in care of a resident of Tonkawa, Oklahoma) and to * * * (defendant in care of the garnishee at O'Neill, Nebraska) addresses at which it is believed defendant may receive such copies; * * * defendant has no place of residence known to plaintiff or her attorneys.'
The court found that notification mailed to the address of the garnishee had been returned with the seal broken. Exercising personal jurisdiction after publication of summons, it ordered judgment for $19,068.75.
Other evidence was introduced at the hearing on the petition for registration. Warrants for the arrest of defendant had been issued, and public officials had been contacted in Minnesota, Illinois, and Oklahoma. There has been no suggestion of death, but defendant's whereabouts and home at any time subsequent to the desertion were unknown.
The objection to domiciliary jurisdiction is built on the long period of evasion, but proclivity for hiding hardly immunizes a fugitive from suit. Restatement, Conflict of Laws 2d, Tent.Draft No. 3, s. 79, p. 67.
'A domicil once established continues until it is superseded by a new domicil.' Restatement, Conflict of Laws 2d, Tent.Draft No. 2, s. 23, p. 87.
The alleged defect in the affidavit is an omission as to the residence of defendant at the time of the statement. The language should be given a reasonable interpretation. See, Skala v. Brockman, 109 Neb. 259, 190 N.W. 860; Frost v. Davis, 182 Okl. 593, 79 P.2d 600. For present purposes it is tantamount to a direct assertion of domicile in Minnesota. The affidavit and the court rule are insufficient evidence of a local restriction upon authority, and the Minnesota court properly exercised jurisdiction.
In the registration proceeding the district court erred in quashing the garnishment summons and setting aside the registration. The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
It is true, as held in the...
To continue reading
Request your trial
-
Stucky v. Stucky
...power to exercise judicial jurisdiction over an individual. Domicile and residence will each support jurisdiction. In Mounts v. Mounts, 181 Neb. 542, 149 N.W.2d 435, we held that a state has judicial jurisdiction over an individual who is domiciled in the state and that a domicile once esta......
-
Nebraska Choice of Law: a Synthesis
...See, e.g., Reich v. Purcell, 432 P.2d 727, 730 (Cal. 1967); Babcock v. Jackson, 191 N.E.2d 279, 285 (N.Y. 1963). 20. See Mounts v. Mounts, 181 Neb. 542, 544, 149 N.W.2d 435, 437 (1967). 21. Mounts, 181 Neb. at 544, 149 N.W.2d at 437; see also State ex. rel. Frasier v. Whaley, 194 Neb. 703, ......