284 SIEEPHARD•V. HOPSON. [191 SHEPHARD- V. HOPSON. .4-3918 Opinion delivered September 23, 1935. PROCESS—RESIDENCE.—"The usual place of abode"•within Craw-ford tkr Moses' Dig., § 1144, subd. 3, is presumed to be the house in which a man's wife Or children are living, although he may be absent for a considerable period of time at the service of process. 2. DOMICILE—CHANGE.—A change of abode is accomplished when a person removes from one place with the intention of abandoning such place of abode and establishing a residence in another locality without the intention of returning to the place from which he has removed:
Aidid &UP:LEA:RD, V. HOPSON: 285 3, NDOMICILD-CHANGE.—One: claiming a change, of abode, leaving his . wife and , family at the place from . which be bas removed, mustestablish, not only actual abandOnment' of.the first'residence, but also that the reinoval is permanent, and fnade with the ihten-tiOn of 'establishing residenee it some other place. • 4. APPEAL-AND ERROR-z -I CONCLUSIVENESS OP FINDING.--4Vhether service of:process, was had on defendaas- wife at . his usual place of abode within Crawford A.Moses?,Dig.„,§ 1144, subd. 3, ,held under the evidence a , question for the Chancellor. . Pi , tocEss=suFFICINCY OF SERVICE.—Delfveilr of summons to de- • • fendant's Wife while *she Wai on'the prethiSes . Within 200 feet'Of defendant's : Usual plaCe of abode Weld ; a Sufficient COmpliance with the yequirement of the , statute.-that delivery of the summons should be at the usual , place of 'abode' cif defendant . ' 6OURTS—JURISDICTION , ' OF ' SUPREME couFr. Tbe 'Supreme Court "'has no original juri g diCtion• to aPpoirit a* côrfimissioner to sell • lands to satisfY a judgnient ;: • • • t ; ; Appeal froni Clay Chancery ;COurt, Western Dis-tribt ; . J. F. Gcluine, Chancellor ; affirmed. .1..' E: L. HollOway, C T Bloodworlh, C.7..Bloodworth., Jr.. for aPpellants: Hopson & Hopson, for appellees. . • , Bun* J . • -In 4923' the 'appellee, .11 . Hopioh; • kad a tract 'of land 'to' , Virgie M: Shephard. • Shephard OTO-cured a loan from the New . England SecuritieS CoMpany andimid the proceeds thereof to 'Hopson' as a:part-of th'e purchase- price fin' the land. , • • He' then executed . a:second mortgage . lo Hopson' on' the same land to* Se'dure the bali ance of- the purchase price; The totes whiCh 'this secohd Mortgage:secured were • signed 'by Virgie Shephard and 'Mary J. Shephard, the appellants: 'Nirgie M.:arid Mary J. Shephard defaulted in the payments on the -first mortgage,' and :suit was brought by the , EnOsburg'Falls Savings Bank the owner of the.notes sechred by the first mortgage, against the Shephards ; The, appellee, DI IloP-soh,: intervened. , praying- for :judgment for the •suinS due him: and, foreclosure' on :his second Mortgage.:• • • At the-time these suits-Were filed Virgie M. Shephard was absent from :the State, and Service waSladitpon•hitn under the third subdivision of '. §, • 1144 'of Crawford '& Moses' 'Digest, which' proVides that service may be had by leaving a copy of the summOns at the usual place of abode of defendant with' . seme., Person who is a- member
286 SHEPHARD V. HOPSON. [191 of his family over the age of fifteen years. PrOcess•was served in the suit of Enosburg Falls Savings Bank on August 19, 1929, and on the cross-complaint of D. Hop-son on the 17th day of September following. On the 6th day of October, 1929, • default decree was rendered on the original suit, and a like decree was rendered on the 8th day of October, '1929, on the intervention and cross-complaint of D. Hopson. The land was sold and the proceeds applied to the payment of the first mortgage, and nothing was paid on the Hopson judgment. Virgie M. Shephard inherited a small tract of land from his grandmother, who died on December 11, 1930. On December 16 of the same year Mary J. Shephard and some of her children moved on this land and have continued to reside thereon until the present time. After the death of the grandmother, Virgie M. Shephard cow-veyed this land to Mary J. Shephard and her children, the issue of her • marriage with the said Virgie M. Shephard. Oh October 6, 1932, appellee, Hopson, filed sliit to revive the judgment rendered October 8, 1929, to set aside the deed executed by Virgie M. Shephard to Mary J. Shepharcl and her children. To this action appellants answered denying the validity of the default decree of October 8; 1929, on the ground that said judgment was procured without service of process being had upon them, and alleging, in addition; a defense to the action of D. Hopson which resulted in the * aforesaid default judgment. At . the hearing of the case on the proof adduced, the court proceeded first to decide upon the ground to vacate the judgment as provided by § 6294 of C. & M. Digest and held that the summons issUed on the cross-complaint of Hopson was duly served- upon Virgie M. and Mary J. Shephard and that the judgment and decree rendered October 8, 1929, is a valid and binding judgment, which, from the date of its rendition b was a valid and subsisting lien on all the real property situated in the western district of Clay County, including the lands conveyed by Virgie M. Shephard to Mary J. Shephard and. others sub-
ARK.] SHEPHARD V. HOPSON. 287 sequent to the' rendition of•said decree, and dismissed appellants' bill of review for want of equity. The court further found that.the deed made by Virgie M. Shephard to his children and their mother was voluntary and for the purpose of defrauding the appellee in the collection of his debt, and decreed that the said deed be annulled and set aside. • It is undisputed that the deed cancelled by decree of the court was voluntary, and therefore the correctness of the decision cancelling said deed depends upon the correctness of the court's finding that there was due service upon which • the decree of October 8, 1929, was based. The homestead right as to the land conveyed could not have vested in the wife and children until title to same was acquired by them and actual residence thereon, which it is admitted did not occur until the latter phrt of the year 1930, for, if the Hopson judgment was valid, its lien immediately attached to the land on the death of Shephard's grandmother which occurred on De-cember 11, 1930. As before stated, service was had under subdivision 3, § 1144, supra, and the return of the officer on said summons is as follows (omitting caption) "On the 17th day of September, 1929, I have duly served the within writ by delivering a copy, and stating the substance thereof fo Mary J. Shephard, and by leaving a copy with 'Mary J. Shephard for Virgie M. Shep-hard at his uSual place , of. . abode with a member of his family over the age of fifteen years, as I am herein commanded. " [Signed] George A. McNeil, Sheriff, "By J. M. Curtis, D. S." It is contended that the process was not served at the usual place of abode of Virgie M. Shephard. In Duval v% Johnson, 39 Ark. 182, it was held that the term "usual place' of abode ". is synonyrnous With "residence." It is generally understood that one 's usual place of abode or residence is where (if he is a married man) he abides with his wife and family. Thetef ore the house in which one's wife and children are living is presumed to be a man's "usual place. of abode' ! within the meaning of the stat-
288 SHEPHARD v. HOPSON-. [191 ute, although he may be absent at the time of service of process and such absence may have continned over a considerable period of time. Undoubtedly a man has the absolute right to change bis place of abode whenever he pleases; and thi$ is accomplished when he removes from one place With the intention of abandoning such plaCe of abode and establishing a residence in another: locality where: he expects. to abide without the intention of returning to the place from which be has removed. When, however, he , leaves a, wife and -family remaining, the burden is upon him in . order to show a change of abode to . establish not only the actual abandonment of the first residence, but also that the removal is • permanent and made with the intention of making his residence at some other place.. Mpqill v. Atiller,,1.83 Ark. 585, 37 S. W. (2d) 689; Dnval v. Johnson, supra: ... That Shephard's tionae in Clay County 7was . no:longer . his .usual place of abode is based onbis testimony to , the effect that be had. separate.d from,his wife and permanently removed from the State. At .the . time the bid of review xas filed,.Shephard and hi$ wife were,divorced and sbe had , married i one Blevins: They . testified, in effect that they had separated. in June of 1928 and Shephard had , gone to Michigan and was not in Arkansas . from that time. thitil after the . year 1929 and was not in the State : of Arkansas at all during the last-named year. -. SheOard 'alsel 'testified 'that HOpson knew that . he had separated from . his 'wife and' that he :had permanentlY left-the Stills. It was shown, hoWever, by evidence which net dispnted that Shephard was actually : in the town .of Corning, Arkansas, and consnited wit _ h a . laWyer on October 8;1929, the day that the judg- ment Sought to be set aside was entered. At Shephard's requeSt a letter -waS written by tbe attorney'making claim for a ciedit on the demand sought to be enforced by the savings bank • in its suit. The attorney who wrote the letter testified that Shephard wia's 'in his office On that day, and the letter Was written at his request, and this testimony is not disputed by Shephard.• Mr. Curtis, the. deputy . sheriff, testified that when he was serving processes in these cases he talked with Mrs. Mary J. Shep-
ARK.] SHEDHAPD V. HOPSON. 289 hard; that she told him that the place at which serVice was made was the residence of Virgie M. Shephard, and that they were not separated. Shephard and his wife were not divorced until the fall of 1930. These circumstance& dispute the testimony given by Shephard and Mary J. Shephard Blevins, raising a question of fact for the decision of the chancellor. Mary J.. Shephard Blevins testified that she was not at home on September 17, 1929, until late in the after-iloon,and that she was not served with any summons for herself or that a copy of same was left with her for Virgie M..Shephard. Some of her children and others Who were picking cotton at the Shephard home on that day testified that Mrs. Shepbard was not there at all, and one of her daughters stated that-while she was picking cotton the officer came and delivered the summons to her ; that she did not deliver them to her mother upon her return or -mention the fact to her. There was also testimony to the effect that Mrs. Shephard was at the home of a neighbor on That day, and at the time it was claimed that service was had upon her. It was shown that there is a close personal resemblance between .Mrs. Shephard and her daughter who claimed that the service was upon her, and it .is argued that the officer was mistaken, that he was only- slightly acquainted with Mrs. Blevins, and was deceived by the resemblance between her . and her. daughter . when he was serving the process. ,Tt is true that Mr. Curtis, the , officer, in answer to a question regarding his- acquaintance with Mary J. Shephard and the length of time he had known her, stated that he was "only slightly acquainted with her. I know her when I see her. I don't . know how long. I have known her." He further stated, after describing Mrs. Shephard's appearance, tbat he was positive that it was in fact she whom he had served ; that he had personal recollection of the time and place of service, was not mistaken as to her identity, and explained to her fully the nature of the summons at the time of the service; that, instead of saying anything which would indicate that she, and Virgie M. Shephard were .not living together or .that he had.
290 SHEPHARD V. HOPSON: [191 moiled from the State of . Arkansaa, she stated that that was Virgie's home, and that they were not separated. Mr. Curtis,• within three weeks before September 17, namely August 29, had .at the 'same place served *upon Mrs. Shephard for: herself and Virgie M. Shephard, her husband, a summons -in the suit Of Enosburg Falls SaVings Bank, and there was no contention upon her part that she was not the.person served. on tbat occasion. This fact supports the testimony of CurtiS as to . fhe identity of the persOn served on September 17. • . Whether the place of service was at the usual place of abode of Virgie M. Shephard and .whether .such ser, vice was had on Mary -J. Shephard were,questions. of fact, and we cannot say that the answer of the .chancellor to these questions in the affirmative was against the pre-, ponderance of the. eyidence, • Mr. Curtis,- the deputy sheriff, testified that he delivered the SuMmons and e) c . plained the contents thered to Mrs. Shephard While she was in her cotton patch about two hundred' feet from' the house. On this testimony appellants contend that; even if the residence at which the service Was had. was the usUal place 'of abode of Virgie Shephard and•the service 'was had upon Mrs. - Shep-hard, the 'SaMe does not satisfy the • requirerneirts of the statute in that serVice was not at the usUal -place of abode of Virgie M Sliephard. This contention is- baSed on the -case of Kibbe v. Boison,.17 Wall,' 624, 21 U.. S. (law. ed,) 741, Where it 'was held that serviee made 125 feet from the &Welling houSe and nOt within ,anrof the ad-jeining buildings or outhouses was not sufficient service within the meaning -Of a statute-of Illinois preseribing how service may be 'had in actions for the . recoverV of real estate, as follOWs : the Premises are act:it:Illy occupied, the declaration shall be served by delivering a copy thereof with the notice above prescribed to the defendant named therein, who shall be in the occupancy thereof, or leaving the same . with some white person of the family, of the. age of ten years or- upwardS, at the dwelling house of such defendant, ithe be absent" . The summons in that case was delivered to the father of defendant at a place
SHEPHARD V. HOPON. 291 about 125 feet away:from the dwelling house. The officer testified that he handed the suMmonS to the fatber of defendant, who, after taking"it in his bands, threw it upon the ground muttering some angry word. In • commenting upon the effect of the statute, the court said the intention was to make :delivery of a summons to a person and at a place as would make it likely that the person interested would receive proper notice . of the nature , of the summons and its delivery. Under the 'circumstances . the court held that the service . waS nof sufficient to. be. such as would reasonably carry into effect the intention .of the statute.. One Of the familiar • meanings , of the preposition "at" is "near tb" or "in the vicinity of:" . It 'would be unreasonable . in all cases' where the defendant . waS absent from home to"require the officer 'serving 4 summons to enter the house or wait om the doorstep for some member of the family to arrive who was in the immediate vicinity. It seems sufficient if the member of the •faraily served is in close, proximity to the premises and is of suitable age and discretion so as to make it reasonable that delivery of the copy . of the summons, or information thereof will be given the -defendant. Mrs. Mary J. Shephard was. shown to have been about . thirty-five years of age, ;and' at: the :time. she was served was within about two hundred,feet of the .house, and*on tbe same premises. 'We think this is. a sufficient ;compliance with the requirement of the statute that delivery of summOns shall be at' the, usual place .of abode of the defendant. • This: is the effect of the holding in State v. Superior .Court, 84 Wash. :392, 146 Pac. 834, and ;in Bursow . y. Doerr, 96. Nth. 219,-147. N. W. 474, Ann Cas. 1916 C, 248. .. • ; From the views expressed it follows that the decree of the trial court must be affirthed. The: appellee-has moved in this court for . an order to..appoint . a commissioner to sell the lands involved in this, litigation. This court has no original jurisdiction On the matter requested, and the motion is overruled.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.