Nw. Mortg. & Sec. Co. v. Noel Const. Co.

• Citation: 71 N.D. 256,300 N.W. 28
• Decision Date: 25 September 1941
• Docket Number: No. 6779.,6779.
• Parties: NORTHWESTERN MORTGAGE & SECURITY CO. et al. v. NOEL CONST. CO. et al.
• Court: North Dakota Supreme Court

71 N.D. 256

300 N.W. 28

NORTHWESTERN MORTGAGE & SECURITY CO. et al.

v.NOEL CONST. CO. et al.

No. 6779.

Supreme Court of North Dakota.

Sept. 25, 1941.

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, of Fargo, for plaintiffs.

Cupler, Stambaugh & Tenneson, of Fargo, for defendants.

CHRISTIANSON, Judge.

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 and by mailing copies of said summons and complaint, on March 19th, 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: “The use and operation by a non-resident or his agent of a motor vehicle upon and over the highways of the State of North Dakota, 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 to person or property, and said use or operation shall be a signification of his agreement that any such process in any action against him which is so served, shall be of the same legal force and validity as if served upon him personally. Service of such process shall be made by serving a copy thereof upon the Commissioner of Insurance or by filing such copy in his office, together with payment of a fee of $2.00 and such service shall be sufficient service upon the said non-resident; provided, that notice of such service and a copy of the process are within ten days thereafter sent by registered mail by the plaintiff to the defendant at his last known address and return card requested and that the plaintiff's affidavit of compliance with the provisions of this act are attached to the summons.”

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 to person or property.”

The question for determination on this appeal therefore resolves to this: Was the defendant Carter a nonresident at the time the automobile collision occurred on June 30th, 1940? If at that time he were still a resident of the State of North Dakota, then the service attempted to be made was not authorized by law. The trial court ruled that at the time of the collision the defendant Carter was not a nonresident, but was still a resident of this State, and that consequently the attempted service upon him was a mere nullity, and, hence, should be set aside.

[1][2][3] The trial court decided correctly. The laws of this State, Section 14, Comp.Laws 1913, provide:

“In determining the place of residence the following rules are to be observed:

1. It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in...