Botna Valley State Bank v. Silver City Bank

54 N.W. 472, 87 Iowa 479

• Court: Supreme Court of Iowa
• Decided: January 31, 1893
• Status: Published

Opinion

Bothrock, J.

Soefsubsti" tilted service: presumption — I. The facts upon which this controversy is founded are as follows: For about thirty years prior.to the thirteenth day of September, 1889, B. E. F. Kelly was a 7 „ ..... _ citizen or Mills county, m this state. For all that time he resided on a large farm, about six miles north of Hastings. He owned the farm and all the live stock and farming implements necessary to carry on his business. He was in debt for a considerable amount, but it does not appear that any of his property was mortgaged. He had a wife and family of grown up children, and there is nothing in the record showing that he was disturbed in his mind, or had any family trouble. On the evening of the thirteenth day of September, 1889, one of his sons drove him to Hastings, that he might take an early train on the next morning to go to G-lenwood, to attend a county convention. He remained during the night at Hastings, and in the morning took the train going west to Glenwood. There were other parties on the train who were going to the convention. When they arrived at Glenwood, some left the train, but, as it was early in the morning, they returned and went on to Council Bluffs, took breakfast, and came back on another train to Glenwood. Kelly did not leave his seat in the car in the morning, when the train reached Glenwood. He went on with the other parties, and announced his purpose to return to -the convention. The whole party left the depot at Council Bluffs, and went to a hotel for breakfast, except Kelly and one other. They stopped on the way up town and took their breakfast at another place. After breakfast, while Kelly was reading a newspaper, the one who was with him left the place. Kelly did not return to the convention. The convention was held on Saturday, September 14. On Sunday evening, Kelly was seen on tho train going east towards Hastings. The last that was seen of him was at Grlenwood. This canse was tried in the court below in May, 1891, and up to that time there was no reliable evidence that Kelly had been seen by anyone after Sunday evening, September 15, 1889.

On the twenty-fourth day of September, 1889, the Botna Yalley Bank, plaintiff herein, commenced an action against Kelly for debts which he owed the bank, and on the same day an original notice was served on him by the sheriff of Mills county, the return of which is as follows: “And on the twenty-fourth day of September, 1889, I served the same on B. E. F. Kelly, he not being by me found in the county of his residence, by leaving at his house and usual place of residence, in Anderson township, Mills county, Iowa, a true copy thereof, with Mrs. B. E. F. Kelly, a member of said B. E. F. Kelly’s family, over fourteen years old. W. 0. De Lashmutt,

“'Sheriff.”

Judgment by default was entered against Kelly, execution was issued, and part of the farm sold thereon to the plaintiff in this action, and in due time a sheriff’s deed was made to the bank, pursuant to the sale. After the judgment was entered, and the farm sold, the defendant Silver City Bank obtained a judgment by default against Kelly, founded upon notice by publication and an attachment of the land. It is claimed that this judgment is a cloud upon the plaintiff’s title, and that it should be removed by a proper decree.

The defendants claimed that, at the time the original notice in the plaintiff’s action was served, Kelly was a nonresident of this state, and that the substituted service, by leaving a copy with his wife, was a mere nullity, and that the court acquired no jurisdiction of the person of Kelly by that service. This is the only question in the case. It will be observed that the notice was served on the twenty-fourth day of September, and Kelly was last seen on the evening of the fifteenth of that month. There is no evidence that Kelly has at any time been seen out of the state, nor that he had any motive for absconding, so that process could not be served on him in this state. All of his acts up until the last time he was seen indicate that it was his purpose to return to the farm, and remain with his family.' He had been making preparations for the wintering of his stock. He told his wife when he left home, on the thirteenth of September, that he was going to Grlenwood to the convention, and would return the next day; and she had no reason to suspect-that he had any other intention.

The law is well settled that, where a residence is once established, it continues until there is an actual change of habitation, with an intention to make a new residence. When a residence is once acquired, it is presumed to continue until there is satisfactory evidence that it has been abandoned. Kinds v. Kinds, 1 Iowa, 36; Nugent v. Bates, 51 Iowa, 77; Cohen v. Daniels, 25 Iowa, 88; State v. Groome, 10 Iowa, 308; Love v. Cherry, 24 Iowa, 204; Vanderpoel v. O’Hanlon, 53 Iowa, 246; Fry’s Flection Case, 71 Pa. St. 302. The burden was upon the defendants to rebut the presumption that. Kelly’s residence was on his farm. There is no evidence that nine days after he was last seen, when the service was made, he had taken up his residence elsewhere.- We are asked to presume that he had done so. No such a presumption can be indulged. To do so would rebut one presumption by another. The fact of Kelly’s presence- in another place must be shown by evidence, and not by presumption. To say the least, no such presumption should obtain by an absence of nine days.

2' óTá'efenaantí6 II. It appears that, before the land was sold, a homestead was set off to the wife of Kelly. It is claimed that, as the homestead was not set off to Kelly, the plaintiff is estopped from claiming that he was a resident of Mills county, where the original notice was served. There is no element of estoppel in this act. It does not appear that the defendants relied on the setting off of the homestead to the wife, and that they acted thereon to their prejudice; and the defendants can not raise the question of estoppel, because it has not been pleaded. Affirmed.