Northwestern Mortgage & Security Company, a Corp.
| Decision Date | 25 September 1941 |
| Docket Number | 6779 |
| Citation | 300 N.W. 28,71 N.D. 256 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Chapter 174, Laws 1935 which provides " that the use and operation by a nonresident or his agent of a motor vehicle upon and over the highways of the State * * * shall be deemed an appointment by such non-resident of the Commissioner of Insurance of the State * * * to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him growing out of such use or operation of a motor vehicle over the highways of this State resulting in damages or loss to person or property" applies only in actions or proceedings against a non-resident. It has no application in an action or proceeding growing out of the use or operation of a motor vehicle over and upon the highways of this State resulting in damage or loss to person or property, where, at the time the loss or damage is alleged to have been sustained, the owner and operator of the motor vehicle had his legal residence or domicil in this State.
2. A domicil once existing cannot be lost by mere abandonment even when coupled with the intent to acquire a new one, but continues until a new one is in fact gained.
3. A person having his legal residence or domicil in this State who removes from the place of his domicil with the intention not to reside there any longer and to remove to another State, is still a resident of, and has his domicil in, this State as long as he remains in the State. His domicil in this State continues until he acquires another domicil elsewhere.
Appeal from District Court, Cass County; P. G. Swensen, Judge.
Action by the Northwestern Mortgage & Security Company, and the Providence Washington Insurance Company, against the Noel Construction Company, a domestic corporation, and Dr. J. A. Carter, to recover damages alleged to have resulted from an automobile collision. From an order setting aside and quashing the service of summons on Dr. J. A. Carter, the plaintiffs appeal.
Order affirmed.
J. E. Hendrickson, for appellants.
Every person has a residence and a new residence can be established only by the union of act and intent. State ex rel. Sathre v. Moodie, 65 ND 340, 258 NW 558.
Moving from one place of residence to another with the intent to abandon the old residence and establish a residence at a new place is in law a change of residence. McEwen v. McEwen, 50 ND 662, 197 NW 862.
Domicil is presumed prima facie to be that place where the party is to be or where he is a resident. 9 RCL 557.
Legal residence consists of act and intention and when once fixed, it requires both act and intention to change it. Tipton v. Tipton (Ky) 8 SW 441.
Residence may be in a particular spot or a wide area. It may be applied to a house, a precinct, a ward, a county or a state. Laughammer v. Munter, 27 LRA 330.
Declarations made by a party whose domicil is in dispute, whether oral, in a deed, will, letter, or other document, are to be considered in connection with the facts of the case. 19 CJ 438.
A change of residence, clearly manifested as a matter of law by acts, cannot be defeated by a subsequent declaration of the person that he did not intend his acts to have that effect. 9 RCL 558; Lee v. Moseley, 101 NC 311, 7 SE 874, 2 LRA 106.
Cupler, Stambaugh & Tenneson, for respondents.
Statutes for constructive service of process are purely of statutory creation and in derogation of common law and must be strictly construed. Roberts v. Enderlin Invest. Co. 21 ND 594, 132 NW 145; Simensen v. Simensen, 13 ND 305, 100 NW 708; Johnson v. Engelhard, 45 ND 11, 176 NW 134; Hughes v. Fargo Loan Agency, 46 ND 26, 178 NW 993.
In every change of domicil there are three essential elements which must concur, viz.: 1st, a definite abandonment of the former domicil. 2d, actual removal to, and physical presence in, the new domicil. 3d, a bona fide intention to change and to remain in the new domicil permanently or for an indefinite time. State ex rel. Sathre v. Moodie, 65 ND 340, 258 NW 558.
A residence cannot be lost by one in transit from his former residence to an intended new domicil; he must have actually arrived at his new home. 5 ALR 284; Reynolds v. Lloyd Cotton Mills (NC) 99 SE 240; Wood v. White, 97 F.2d 646; Suit v. Shailer, 18 F.Supp 568; Kurland v. Chernobil (NY) 183 NE 380.
This is an appeal from an order setting aside and quashing the service of a summons. The material and undisputed facts are substantially as follows:
On June 30th, 1940, and for many years prior thereto, the defendant, Carter, was a resident of Warwick in Benson county, North Dakota. Shortly prior to June 30th, 1940, he shipped his household goods to his son at Seattle, Washington. On June 30th, 1940, he, together with his wife, left Warwick in an automobile, intending to drive to points in Minnesota for the purpose of visiting relatives and friends there. It was his intention when he left Warwick on June 30th not to return there but to establish a residence at some place other than in North Dakota. On June 30th, 1940, as the defendant was proceeding on his journey, and while still within the state of North Dakota, he became involved in an automobile collision. As a result of such collision it became necessary to have defendant's automobile repaired and he did not leave North Dakota for several days. Eventually, however, he proceeded upon his journey and visited relatives and friends in Minnesota and thereafter drove to Seattle, Washington, and established his residence there.
On March 1st, 1941, the plaintiff brought this action against the defendants J.A. Carter and the Noel Construction Company, a corporation, seeking to recover damages alleged to have resulted from the automobile collision that occurred on June 30th, 1940. The cause of action against the defendant Carter is predicated upon the alleged negligence of the said Carter in the operation of his automobile.
Service of the summons and complaint in the action was made upon the defendant, Carter, pursuant to chapter 174, Laws 1935, by serving copies thereof upon the Commissioner of Insurance on the 15th day of March, 1941, by registered mail, to the defendant J. A. Carter addressed to him at 3216 West 58th Street, Seattle, Washington.
Thereafter, the defendant, Carter, made a special appearance, and so appearing objected to the court's jurisdiction over his person, asserted that the attempted service of the summons upon him was null and void, and asked that such service be set aside and quashed. After hearing, the trial court made an order to the effect "that the attempted service of the summons and complaint . . . upon the defendant, Dr. J. A. Carter, under the provisions of chapter 174, of the Laws of North Dakota for the year 1935, is null and void; that the court has acquired no jurisdiction of the person of the defendant, Dr. J. A. Carter, by reason of said attempted service, and that said service be, and the same hereby is set aside and quashed." The plaintiffs have appealed from such order.
The sole question involved and presented for determination on this appeal is whether the service of the summons upon the defendant Carter was valid and conferred jurisdiction over his person. This question in turn involves a construction and application of chapter 174, Laws 1935; for the service that was made, or attempted to be made, is authorized only in cases which fall within the purview of that statute.
Said chapter 174, Laws 1935, provides:
It will be noted that the statute applies only to nonresidents. It does not apply where the person to be served with process is a resident of the state. It is "the use and operation by a nonresident or his agent of a motor vehicle upon and over the highways of the state," which the statute says "shall be deemed an appointment by such nonresident of the Commissioner of Insurance of the state of North Dakota to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him growing out of such use or operation of a motor vehicle over the highways of this state, resulting in damages or loss...
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