Bohland v. Smith

7 F.R.D. 364, 1947 U.S. Dist. LEXIS 1682

Opinion

LINDLEY, District Judge.

Inasmuch as there is no dispute about the facts, the court can determine this motion upon the pleadings without the introduction of evidence.

Defendant William Smith was convicted in this court and is now confined in the United States Penitentiary at Terre. Haute. Service of summons herein was made upon him by serving, at the family residence, his wife as provided in Section 4(d) of Civil Rules of Procedure, 28 U.S. C.A. following section 723c. The sole question involved is whether it can be said that his absence from his home, brought about by his incarceration, brings about a change in the usual place of abode of defendant. I am of the opinion that where one voluntarily establishes a place of abode or residence but is prevented from occupying it, by act of his sovereign or otherwise, his place of abode is not changed. This seems to be the reasoning of other courts. McFadden v. Shore, D.C., 60 F.Supp. 8; Rovinski v. Rowe, 6 Cir., 131 F.2d 687; Wendel v. Hoffman, D.C., 24 F.Supp. 63.

I conclude that defendant William Smith’s usual place of abode is his residence in this District and that service of process was made in the manner prescribed by the Federal Rules of Civil Procedure.

The motion to quash the summons and :he return is denied.