Wood v. Roeder

• Decision Date: 18 June 1895
• Docket Number: 6867
• Citation: 63 N.W. 853,45 Neb. 311
• Parties: BEN B. WOOD v. MAX L. ROEDER
• Court: Nebraska Supreme Court

63 N.W. 853

45 Neb. 311

BEN B. WOOD v. MAX L. ROEDER

No. 6867

Supreme Court of Nebraska

June 18, 1895

OBJECTION by defendant in error to jurisdiction of supreme court on the ground that there was no legal service of summons in error. Objection overruled.

Objection OVERRULED.

Winfield S. Strawn, for defendant in error.

George E. Pritchett, contra.

OPINION

POST, J.

This is an objection by the defendant in error Roeder to the jurisdiction of this court on the ground that there was no legal service of the summons in error. It is conceded that a petition in error was filed herein within one year from the date of the judgment below, and that a summons was in due time issued for the defendant in error, directed to the sheriff of Douglas county, which was subsequently returned showing service in due form by copy left at the usual place of residence of the defendant in error in said county. It is claimed in support of the objection that Roeder was not, at the date of such service, to-wit, April 17, 1894, a resident of Douglas county, but that he had, on the 10th day of February previous thereto, removed with his family from the city of Omaha to the state of New York, where he had a permanent residence at the date first mentioned. Numerous affidavits have been submitted in support of the objection, among others one by Roeder himself, which, so far as material to the question at issue, is as follows: "Max L. Roeder, being duly sworn, deposes and says that he is the identical person above named, defendant in error in the above entitled cause; that on February 10, 1894, affiant removed with his family from the city of Omaha, Nebraska, to the city of New York, in the state of New York; that since said date affiant has been continuously a citizen of the state of New York; that since said February 10, 1894, this affiant has not been a resident of the city of Omaha, or state of Nebraska, nor had any home or place of residence in the said city of Omaha, or in the county of Douglas, in the state of Nebraska, nor has affiant or his family, or any of them, since said date ever been in said county of Douglas, or further west than the state of New York." The other affidavits are to the same effect and in substantially the same language as the above.

From evidence submitted by the plaintiff in error it appears that immediately prior to the departure of Roeder and wife from Omaha, they were occupying a rented house, in which they had resided continuously since the month of December, 1893, and their furniture and household goods, except a portion of their clothing and some silverware, were left in said house in charge of a servant, who remained on the premises most of the time, the balance of her time being spent with Mrs. Roeder's mother, Mrs. Goldsmith, under the direction of the Roeders. In the spring following their departure they shipped to Omaha some of their winter clothing, which they caused to be packed in said house, and by their order some summer clothing was forwarded to them at New York. At the time of the alleged service of the summons the servant mentioned was, in consequence of information received through Mrs. Goldsmith, engaged in cleaning and putting the house in order preparatory to the return of the Roeders. On the 7th day of May following the date of the service this letter was written by Mr. Roeder to his landlord in Omaha:

"PLAZA HOTEL, NEW YORK, MAY 7, 1894.

"Geo. N. Hicks, Esq., New York Life Building, Omaha, Neb.--DEAR SIR: I desire to be informed without delay if you will give me the lease on our house until next May. It is very important that I know this immediately so that I can make my arrangements, and either give up the house at once, or know that I will not have to return on a few days' notice and store my things, in case you sell the same. I am closing an important deal which may take from two to three weeks, in that case Mrs. Roeder would undoubtedly spend a few weeks at the sea shore before returning home. But if you will give us the lease or assurance that in case the house is sold, we will not be disturbed until next May, I will keep the same, as you know we think a great deal of that little corner. I do not know whether my man has paid the rent or not; if not, then please send bill and I will see that the same is forwarded. Please answer by return mail.

"Yours truly,

M. L. ROEDER."

About June 1, following, Mrs. Roeder addressed Mr. Hicks as follows:

"PLAZA HOTEL, NEW YORK, Monday.

"DEAR MR. HICKS: It will be a great disappointment to me if you refuse to give us a lease on our house. You know I have always taken a great interest in it, and now, after having had it papered so prettily, it would be really too bad to have someone else move in. Some of my friends have invited me to spend the summer with them in their cottages at Buzzard's Bay and other resorts, but if we cannot get a lease on the house Mr. Roeder says I will have to return to Omaha at once and have everything stored. Please let us hear from you saying that we may rest easy about keeping the house for another year.

"Yours sincerely,

MRS. ROEDER."

To Mr Hicks, the party addressed in the foregoing communication, Roeder stated that he was going to New York for the purpose, among other things, of establishing institutes for the cure of the morphine habit, or to sell an interest in a morphine cure owned by him. He also paid rent monthly for the house occupied by him, up to and including June,...