Thomas v. Thomas

• Citation: 96 Me. 223,52 A. 642
• Parties: THOMAS v. THOMAS.
• Decision Date: 28 February 1902
• Court: Maine Supreme Court

52 A. 642

96 Me. 223

THOMAS

v. THOMAS.

Supreme Judicial Court of Maine.

Feb. 28, 1902.

(Official.)

Exceptions from supreme judicial court, Knox county.

Action by Edmund Thomas, executor, against Mary E. Thomas. Action dismissed, and plaintiff excepts. Exceptions overruled.

Argued before WISWELL, C. J., and EMERY, STROUT, FOGLER, and PEABODY, JJ.

D. N. Mortland. for plaintiff.

C. E. & A. S. Littlefield, for defendant.

FOGLER, J. This is an action of trover, which comes to this court upon exceptions by the plaintiff to the order of the presiding justice, on motion of the defendant dismissing the action for want of sufficient service. The Writ is dated August 21, 1901, and commanded the officer "to attach the goods and estate of Mary E. Thomas, of Philadelphia, in the state of Pennsylvania, and now commorant in South Thomaston, in the county of Knox, to the value of five hundred dollars, and summon the said defendant, if she may be found in your precinct, to appear before our justices of our supreme judicial court to be hold-en in Rockland, within and for the county of Knox, on the third Tuesday of September, A. D. 1901, to answer unto Edmund W. Thomas, executor." The return of the officer, deputy sheriff of Knox county, states that: "On August 23, A. D. 1901, by virtue of this writ I attached a chip, the property of the within named defendant; and on the 23d day of August, A. D. 1901, I summoned the said defendant by leaving at her last and usual place of abode a summons for her appearance at court."

On the first day of the return term, the defendant appeared specially for the purpose of objecting to the service of the writ, but for no other purpose, and filed a motion in writing to dismiss the action for insufficiency of service. After a hearing thereon by the presiding justice, said motion was sustained, and said action ordered dismissed, from which ruling and order the plaintiff excepts.

By the exceptions and the motion, which is made a part of the exceptions, it appears that the defendant was a permanent resident of Philadelphia, and at the date of said writ and at the time of service thereof, she was commorant, together with her daughter and son-in-law, in the town of South Thomaston. The question is whether the service as stated by the officer in his return is sufficient to bring the defendant within the jurisdiction of this court.

By the common law, personal service was required in all actions purely in personam. In this state, and, it is presumed, in all the other states of the Union, provision is made by statute for substituted or constructive service upon parties resident in the state. Such substituted service is a departure from the common law, and the authority for it must be strictly followed. Settlemier v. Sullivan, 97 U. S. 444, 24 L. Ed. 1110; Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959.

Our statute (Rev. St. c. 81, § 17) provides how writs may be served on residents, and declares that "a separate summons, in form by law prescribed, shall be delivered to the defendant or left at his dwelling-house or place of last and usual abode." Section 21 of the same chapter, providing for the service of writs on nonresidents, contains no provision for substituted or constructive service.

The obvious construction of these sections is that constructive service can only be made upon parties defendant resident within the limits of the state, and therefore within the jurisdiction of the court.

At the date of the service of the writ the defendant's permanent residence was in Pennsylvania, but she was then commorant in this state. Can she be regarded as a resident of the state, so that substituted service could be made as provided by statute?

The learned counsel for the plaintiff contends that as commorancy is "a residence temporary, or for a short time," a person commorant in a place is one having a residence for the time being in such place, and if he resides at a given place, whether for a long or short period of time, he is a resident. We cannot sustain this contention. We think the word "resident," in the statute, means one having a permanent residence in the state, as distinguished from one who is merely temporarily within the limits of the state.

In Pullen v. Monk, 82 Me. 412, 19 Atl. 909, the court, in discussing the meaning of the work "commorant," contained in another statute, uses the following language: "It cannot be doubted that a man may be a...