Wood v. Roeder

• Citation: 45 Neb. 311,63 N.W. 853
• Parties: WOOD v. ROEDER.
• Decision Date: 18 June 1895
• Court: Supreme Court of Nebraska

45 Neb. 311

63 N.W. 853

WOOD

v.ROEDER.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. The words “residence” and “usual place of residence,” as employed in statutes, are generally synonymous with the term “domicile,” hence the residence essential to confer jurisdiction is a legal one equivalent to the domicile of the defendant.

2. The domicile of a defendant is that place where he has his fixed and permanent home, and to which when absent he has the intention of returning.

3. To effect a change of domicile there must not only be a change of residence, but an intention to permanently abandon the former home. The mere residing at a different place, although evidence of the required intention, does not per se constitute a change of domicile.

4. On the 10th day of February, 1894, R., a resident of O., in this state, with his family went to New York City, among other purposes, to establish institutes for the cure of the morphine habit, leaving his furniture and household goods in charge of a servant, in a rented house, for which he continued to pay rent monthly until June 1, following. In the spring of that year he sent to O. some of his own and his wife's winter clothing, and caused their summer clothing to be forwarded to them. On May 7 of the same year, R. wrote his landlord requesting a lease of the house occupied by him for the ensuing year, and saying, “I am closing up an important deal that will take from two to three weeks. In that case Mrs. R. will spend a few weeks at the seashore before returning home.” The servant in charge of the house understood their absence to be temporary merely, and was not advised of any intention on the part of R. to reside permanently in New York, until the month of June, and was on the 17th day of April engaged in putting the house in order, preparatory to the return of the family, when a copy of the summons herein was by the sheriff left with her in said house for R. Held not to establish a change of domicile by R., and that the service of summons was at his usual place of residence within the meaning of the Code of Civil Procedure.

5. Haynes v. Aultman, Miller & Co., 54 N. W. 511, 36 Neb. 257, distinguished.

Error to district court, Douglas county; Keysor, Judge.

Action by Max L. Roeder against Ben B. Wood. There was a judgment for plaintiff, and defendant brought error. Objection by defendant in error to jurisdiction of supreme court. Overruled.Geo. E. Pritchett, for plaintiff in error.

Win. S. Strawn, for defendant in error.

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 Feb. 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 Feb. 10, '94, 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, '94. 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 seashore before returning home. But if you will give us the lease, or assurance that...