Reaume & Silloway, Inc. v. Tetzlaff

• Decision Date: 03 June 1946
• Docket Number: No. 484.,484.
• Citation: 23 N.W.2d 219,315 Mich. 95
• Court: Michigan Supreme Court
• Parties: REAUME & SILLOWAY, Inc., v. TETZLAFF et ux.

315 Mich. 95

23 N.W.2d 219

REAUME & SILLOWAY, Inc.,

v.TETZLAFF et ux.

No. 484.

Supreme Court of Michigan.

June 3, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Sherman D. Callender, judge.

Action by Reaume & Silloway, Inc., against Paul J. Tetzlaff and wife to recover a broker's commission for procuring a purchaser of defendants' realty. From an order denying defendants' motion to quash the service of summons, defendants appeal in the nature of mandamus.

Affirmed.

Before the Entire Bench.

Schmalzriedt, Frye, Granse & Frye, of Detroit, for plaintiff and appelle.

Henry E. Rice, of Detroit, for defendants and appellants.

STARR, Justice.

On June 22, 1945, plaintiff corporation, a Detroit real estate broker, began the present law action in the circuit court for Wayne county to recover a commission on a real estate transaction. Summons was issued and was served on both defendants in Oakland county on June 27th. In its declaration plaintiff alleged that defendants were residents of Wayne county; that they were the owners of the property located at 6470 Alden drive, West Bloomfield township, Oakland county; that they desired to sell this property and had authorized plaintiff to procure a purchaser; that plaintiff found a purchaser, and that an agreement was executed whereby defendant agreed to sell and the purchaser to purchase the property at a price of $135,000; that the agreement provided that defendants would give possession on or before May 15, 1945, and that they would pay plaintiff a commission of $6,750. Plaintiff further alleged that defendants had refused to perform their agreement to sell and that, having procured a purchaser, it was entitled to the agreed commission.

Defendants appeared specially and filed motion to quash the service of summons on the ground that they were not residents of Wayne county but had been residents of Oakland county since May 1, 1945, and that valid service could not be made upon them in Oakland county under 3 Comp.Laws 1929, § 14090, Stat.Ann. § 27.757. Plaintiff filed answer to this motion, alleging that defendants were residents of Wayne county at the time suit was begun and summons served. No testimony was taken, the matter being heard upon the motion and answer and supporting affidavits. An order was entered denying the motion, and, having obtained leave, defendants appeal in the nature of mandamus.

Section 14090 cited above provides in part:

‘All civil process issued from any court of record may be served anywhere within the state where the party upon whom service is to be made may be found, in the following cases:

‘1. When the process is issued out of a court in chancery;

‘2. When the process is issued out of a court at law, when the suit is brought in the county where the defendant, or one (1) of the defendants if there be more than one (1), resides. * * *

‘4. * * * When a personal transitory action at law is commenced in the county where the plaintiff resides, against a defendant or defendants residing without the county, service of process must be had in the county where the suit is commenced. If such service is had upon one (1) defendant within such county, the remainder of the defendants may be served anywhere in the state.'

The sole question presented is whether or not the trial court erred in denying defendants' motion to quash the service of summons. Plaintiff contends that defendants were both residents of Wayne county, where the suit was begun, and that the service upon them in Oakland county was valid under subsection 2 of the above statute. Defendants contend that they were not residents of Wayne but were residents of Oakland, and that valid service could not be made upon them in that county under subsection 4 of the statute. It is clear that if defendants were residents of Wayne, the service upon them in Oakland was legal, but if they were not residents of Wayne, the service was void. In denying defendants' motion, the trial court apparently determined that they were residents of Wayne county.

In their affidavits in support of their motion to quash, defendants stated that in 1942 they purchased the property in Oakland county for the purpose of establishing a home for aged and convalescent persons and with the intention of making their permanent home at that address. They further stated that they moved their furniture, household goods, and personal belongings to that address and since about May 1, 1945, have been living and sleeping there; that they receive their personal and business mail at that address; that they registered at the ration board as residents of Oakland and procured their automobile licenses in that county. They further said that their bona fide residence was in Oakland county and that they had not resided in Wayne county since May 1, 1945.

In its answer and supporting affidavit plaintiff claimed that defendants were residents of Wayne county; that they occupied the premises in Oakland only in connection with their operation of the convalescent home and that their occupancy was temporary in character. In further stated that defendants actually maintained their residence at 1258 Chicago boulevard in the city of Detroit; that they were listed in the Detroit telephone directory; that defendant Paul Tetzlaff voted at the general election in Detroit on April 2, 1945; and that defendants' allegation of residence in Oakland county was only for the purpose of hindering and delaying the prosecution of the present suit.

The above statute relating to the service of process does not define the meaning of the term ‘residence.’ In Gluc v. Klein, 226 Mich. 175, 178, 197 N.W. 691, 692, we said: ‘In this state, the words ‘domicile’ and ‘residence’ are treated as synonymous terms.' See, also, Hartzler v. Radeka, 265 Mich. 451, 251 N.W. 554. In considering the meaning of the term ‘residence’ in Wright v. Genesee Circuit Judge, 117 Mich. 244, 75 N.W. 465, 466, we said:

‘Residence means the place where one resides, an abode, a dwelling or habitation, especially a settled or permanent home or domicile. Residence is made up of fact and intention. There must be the fact of abode, and the intention of remaining.'

See, also, Loeser v. Jorgensen, 137 Mich. 220, 100 N.W. 450;Beecher v. Common Council of Detroit, 114 Mich. 228, 72 N.W. 206;Welch v. Whelpley, 62 Mich. 15, 28 N.W. 744,4 Am.St.Rep. 810;Campbell v. White, 22 Mich. 178;In re High, 2 Doug. 515.

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