Ruby v. Pierce

• Decision Date: 19 October 1905
• Citation: 74 Neb. 754,104 N.W. 1142
• Parties: RUBY v. PIERCE ET AL.
• Court: Nebraska Supreme Court

74 Neb. 754

104 N.W. 1142

RUBY

v.PIERCE ET AL.

Supreme Court of Nebraska.

Oct. 19, 1905.

Syllabus by the Court.

An officer's return to a summons, showing service by leaving at the “last” usual place of residence of the defendant, does not show a compliance with the statute authorizing service by leaving a copy at the usual residence of the defendant, and a judgment based thereon is void for want of jurisdiction.

Commissioners' Opinion. Department No. 2. Error to District Court, Gage County; Kelligar, Judge.

Action by Jesse E. Pierce and Robert Wible against Daniel G. Ruby. Judgment for plaintiffs, and defendant brings error. Reversed.L. W. Colby, for plaintiff in error.

Hazlett & Jack, for defendants in error.

ALBERT, C.

This action was for the recovery of damages for breach of warranty in the sale of an animal for breeding purposes. A summons duly issued, and the officer's return thereto is as follows: “April 10th, 1903. Summons returned, indorsed: Received this writ on the 31st day of March, A. D., 1903, and on the 9th day of April, A. D., 1903, after diligent search, and being unable to find the within-named D. G. Ruby in Gage county, I left a true and certified copy of the within summons at his last usual place of residence of the said D. G. Ruby. All done in Gage county, Nebraska. Witness my hand this 10th day of April, A. D., 1903. Fees: 85c. W. A. Waddington, Sheriff, by V. E. McGirr, Deputy.” The defendant made no appearance, and judgment by default was taken by the plaintiffs. Afterward, at the same term, the defendant entered a special appearance, objecting to the jurisdiction of the court. These objections were overruled, and the defendant brings the record here for review on error.

It will be observed that the return to the summons does not show actual service on the defendant, but that service was made, or attempted, by leaving a copy of the writ at his “last” usual place of residence. In our opinion the service is not merely irregular, but absolutely void. The statute permits service by leaving a copy of the summons “at the usual place of residence” of the defendant. Civ. Code, § 69 (Cobbey's Ann. St. 1903, § 1070). His usual place of residence is his place of abode at the time of service. Blodgett v. Utley, 4 Neb. 30; Seymour v. Street, 5 Neb. 88. “The words ‘residence’ and ‘usual place of residence,’ as employed in statutes, are generally synonymous; hence, the residence essential to confer jurisdiction is a legal one, equivalent to the domicile of the defendant. The domicile of a defendant is that place where he has his fixed and permanent home, to which, when absent, he has the intention of returning.” Wood v. Roeder, 45 Neb. 311, 63 N. W. 853. It is clear that such home must be his present home, as distinguished from a past or prospective home. In the return of the sheriff the phrase “usual place of residence” is qualified by the word “last.” It will be presumed that in making this qualification the officer acted advisedly. The return as thus qualified conveys the thought, not that a...