Stevens v. Ellsworth

• Decision Date: 31 May 1895
• Citation: 95 Iowa 231,63 N.W. 683
• Parties: STEVENS v. ELLSWORTH.
• Court: Iowa Supreme Court

95 Iowa 231

63 N.W. 683

STEVENS

v.ELLSWORTH.

Supreme Court of Iowa.

May 31, 1895.

Appeal from district court, Kossuth county; George H. Carr, Judge.

Action by attachment to recover attorney's fees. Judgment for plaintiff, and the defendant appealed. Reversed.J. C. Cook, for appellant.

Geo. E. Clark, for appellee.

GRANGER, J.

Plaintiff is the assignee of an account of $5,095 from Charles A. Clark for the services of said Clark as an attorney. The defendant is the husband of Hattie A. Ellsworth. Ellsworth and his wife became involved in litigation in Hardin county, Iowa, and Clark was employed by his wife, and the fees sought to be recovered are for services in that suit. It may be well here to state some of the facts involved in the litigation between Ellsworth and his wife. In December, 1891, Ellsworth filed in the district court in and for Hardin county, Iowa, his petition asking for a divorce. Mrs. Ellsworth accepted service of the original notice, and in December, 1891, a decree was entered granting to Ellsworth a divorce and the custody of the children. In January, 1892, Mrs. Ellsworth employed Mr. Clark, with other counsel, to institute proceedings to set aside the decree of divorce. After service of a petition and motion to set aside the decree as having been obtained by fraud, and being only colorable, Ellsworth and wife attempted a settlement, by which the decree was to stand, and she was to have a certain amount of property. Afterwards Mrs. Ellsworth determined to proceed to set aside the decree of divorce, and issue was taken on the petition and motion, and, among other facts pleaded in resistance, was the attempted settlement. This resulted in setting aside the decree of divorce, and Ellsworth then dismissed his divorce proceedings. Mr. Clark, then, as attorney for Mrs. Ellsworth, commenced proceedings for divorce against Ellsworth on the ground of cruel and inhuman treatment. After the service of the original notice, and before the petition was filed, the parties became reconciled, and the proceeding was dropped. It appears that Mr. Ellsworth is a man of much wealth, and that Mrs. Ellsworth has no means with which to pay her attorney. In the year 1892, Mr. Clark filed his petition in the district court of Hardin county to recover from Mr. Ellsworth his fees, but because of Mr. Ellsworth's absence in Chicago, Ill., he could not obtain personal service of the notice of suit in Iowa, and on the 19th of August, 1892, he assigned the account to the plaintiff, who is a resident of Chicago. On the 24th day of August, 1892, the plaintiff filed his petition in attachment in the district court of Kossuth county, from which court a writ issued, and certain real estate was attached. The service was by publication, and also by personal service on Ellsworth in Chicago. The personal service was made August 30, 1892. On the 6th day of September, 1892, Clark filed a dismissal of the action commenced by him in Hardin county. On the 2d day of September, 1892, Ellsworth accepted service of the notice in the Clark suit, but the notice was not received by Clark until after he had dismissed this suit.

1. The defendant appeared in this suit in Kossuth county, and filed his motion to transfer the cause to Hardin county, on the ground that it was the county of his residence, which the court overruled, and error is assigned on the ruling. Defendant, in support of this motion, filed affidavits of himself, wife, son, and some three others, residents of Hardin county. From these affidavits it appears that Ellsworth left Iowa Falls in June, 1892, to go to Chicago on business and pleasure, intending to be absent not to exceed three months; that, so far as his business there was concerned, he was only establishing in Chicago a branch office of the real-estate firm of Ellsworth & Jones, of Iowa Falls, of which he was a member; that all the furniture was left in the house at Iowa Falls, and the clothing of the family, except that for summer wear. The house at Iowa Falls was vacant,--that is, unoccupied,--and the lawn was mowed by a colored man, not residing on the premises. The counter showing is by the affidavit of Mr. Clark, to the effect that he commenced his personal action against Mr. Ellsworth in Hardin county, and for some weeks attempted to get personal service, but could not do so, because of his absence in Chicago; that he was in Chicago with his family; that the directory of Chicago showed that Mr. Ellsworth was engaged in the real-estate business, with an office at No. 521 Chamber of Commerce Building, and No. 98 North Kenzie avenue, and had a house at 521 Schiller street; that affiant had seen the office in the Chamber of Commerce Building, and that he believes, and did believe, that said Ellsworth was a nonresident of the state of Iowa. There are some other facts made to appear that more or less affect the conclusion, but the foregoing are the principal ones. Appellant's claim is that this is a personal action, so as to come within the provisions of Code, § 2586. That section provides: “Except where otherwise provided herein, personal actions must be brought in a county wherein some of the defendants actually reside. But if none of them have a residence within the state, they may be sued in any county wherein either of them may be found.” It seems to us that it is not a personal action, or was not when commenced, under the provisions of Code, § 2580, as follows: “An action when aided by attachment, may be brought in any county in the state wherever any part of the property sought to be attached may be found, when the defendant whose property is thus pursued is a non-resident of this state. If such defendant is a resident of this state such action must be brought in the county of his residence. * * *” Neither the service by publication nor the personal service in Chicago would give jurisdiction of a person so as to authorize a personal judgment. The action, at its inception, was one in rem. The situation of Mr. Ellsworth at the commencement of this suit was such that no other suit could be commenced against him in Iowa. His absence from the state with his family was such that neither a personal nor a substituted service could be made so as to render the action a personal one. His property in the state was the only basis of jurisdiction, and such a jurisdiction is only as to property. It gives no right to a personal judgment. On the question of fact as to the residence, we think the holding of the court is conclusive. The evidence is in conflict. It is true that, as to particular facts, there is no dispute, but as to the intent of Mr. Ellsworth in going to Chicago, under all the statements and facts, the conclusion is not a forced one that he had changed his residence. He had gone there, and taken rooms for his family for three months; had opened offices for the transaction of real-estate business, and, as we understand, this business was not of a temporary character. It required the presence of some one to conduct it, and the only inference is that he would be the person. The other conclusion--that is, that he was a resident of Iowa, so that he could only be sued in Hardin county--gives to a person situated as he was a very superior advantage. He can be absent from the state with his family, doing a regular business, and, because he may intend it to be temporary, his creditors must wait his pleasure for an opportunity to enforce payment through the courts. It is doubtful if the legislature ever intended, by the statute in question, such a state of affairs. But, however that may be, his statements, and those of his family, are not conclusive as to his intent nor as to the facts. By this motion he assumed the burden of showing that the venue should be changed, and there is enough in the facts to make the question one of doubt. Independent of the statements of the family as to what was intended, the facts would be a strong, if not quite conclusive, showing of residence in Chicago. The statements as to such intent ought not to be absolutely controlling. They may be considered with otherfacts, and be credited or not, as the situation will warrant. We think the residence contemplated by this statute means actual residence. It is, perhaps, not best nor expedient to attempt to accurately define it, by saying how long an absence from the state, in a way that a personal action could not be commenced, or what should be the circumstances of such an absence, to fix a nonresidence. The facts of particular cases will vary so that it is best to leave it a question for consideration upon facts as they arise. We think the facts of this case justified the finding by the district court. Appellant cites, as a strong case in his favor, Bradley v. Fraser, 54 Iowa, 289, 6 N. W. 293. That case involved a construction of Code, § 3507, as to the jurisdiction of justices of the...