SMITH v. SMITH

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District Court of Appeal, First District, Division 2, California.

Eythie SMITH, Plaintiff and Respondent, v. Ray SMITH, Defendant and Appellant.

Civ. 16249.

Decided: May 23, 1955

Desmond N. Bonnington, Oakland, for appellant. Harris, Darter & Older, Oakland, for respondent.

This appeal involves the interpretation of Section 417 of the Code of Civil Procedure, which reads: ‘Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State at the time of the commencement of the action or at the time of service.’

Section 412 supra provides in substance that a person who ‘resides out of the State; or has departed from the State; or can not, after due diligence, be found within the State; or conceals himself to avoid the service of summons' is subject to service by publication, and Section 413 provides that under such circumstances personal service outside the state is ‘equivalent to publication’.

Plaintiff-respondent filed her complaint for divorce, alimony, and division of personal property on October 27, 1953 and the same day moved for an order directing service of summons by publication, the supporting affidavit stating that defendant ‘temporarily resides out of the State of California to wit: Buffalo, New York.’ The order entered on it the same day states that it appears from said affidavit that defendant ‘does not reside within the State of California and that said defendant resides in the city of Buffalo, State of New York.’ Personal service was made on defendant in Buffalo on October 30, 1953. The interlocutory decree of divorce providing for alimony and division of personal property and a separate order for attorneys' fees and costs were entered by default. Subsequently, defendant, appearing specially, moved to vacate said decree and order, except only insofar as plaintiff was declared entitled to a divorce, on the ground that no jurisdiction over his person had been obtained because he had not been a resident of this state at the time of the commencement of the action or at the time of the service as required by Section 417 of the Code of Civil Procedure, supra. His supporting affidavit states that on January 1953 he left California and established his residence and domicile in Cincinnati, Ohio, where he maintained his permanent abode and permanent headquarters of his business of lecturing and selling a certain publication connected with it; that he does not actively participate in the management of his real estate business in California, which is operated by a manager; that he did not have when he left California and does not have an intention of returning there.

At the trial of the motion to vacate plaintiff testified, supporting her testimony in part with many exhibits, that for more than twenty years prior to their separation in January 1953 the parties had lived in Alameda County where defendant had a real estate business, the last eight years at the same address; that in January 1953 he left California on an extended lecture and business tour, as he had done before, visiting many cities but staying nowhere more than ten days continuously, meanwhile communicating regularly with the manager of his Oakland real estate business, maintaining his address for mail and bills at the address of said Oakland business, to which he also charged the costs and where he kept the supplies for his book selling campaign; that he had plaintiff keep for him in Alameda County part of his personal effects and that during 1953 he repeatedly expressed his intention, both orally and in writing, to return to Oakland when a property settlement with plaintiff would have been reached and/or he would have earned enough to pay outstanding bills, to keep control of the policy and management of his California real estate business and to build it up further on his return.

The court denied the motion to vacate granting plaintiff further attorneys' fees. Defendant appeals from said order of denial, from the interlocutory decree, except insofar as it declares plaintiff entitled to a divorce, and from the orders for attorneys' fees and costs. He contends that the denial of the motion to vacate can only have been based on the holding that appellant's domicile was still in California and that in Section 417 supra ‘resident’ means ‘domiciliary’; that the latter cannot be the legislative intent because Senate Bill No. 302, which in 1951 proposed Section 417, contained the words ‘domiciled in’ which were later amended to read ‘a resident of’; that therefore Section 417 requires a residence in fact, or even the physical presence of defendant, in California at the time of the commencement of the action, which was not the case here, as shown by the statement in the order for service by publication, that defendant at that time did not reside in California, but in Buffalo, New York. Respondent urges that resident in Section 417 means domiciliary.

Neither the Code nor any California decision gives a specific definition of ‘resident’ as used in Section 417 and without it the meaning of ‘resident’ in statutory language is uncertain. Text writers and courts normally distinguish ‘domicile’ and ‘residence’ so that ‘domicile’ is the one location with which for legal purposes a person is considered to have the most close and permanent connection, which normally is his hometown, where he intends to remain or to return to, but which the law may also assign to him constructively whereas ‘residence’ indicates any factual place of abode of some permanency, more than a mere temporary sojourn. But statutes do not conform to this usage. They use ‘resident’ and ‘residence’ mostly in the legal meaning of ‘domicile’ and ‘domiciliary’ but sometimes also in the meaning of factual residence or in still other meanings. (Restatement, Conflict of Laws § 9 comment e; 16 Cal.Jur.2d 648.) The most general provisions concerning this subject in our codes, Section 243 and Section 244 Government Code use the word ‘residence’ in giving the basic rules as to legal domicile. It has been held that ‘resident’ means ‘domiciliary’ in Section 128 Civil Code as to residence requirement for divorce, Ungemach v. Ungemach, 61 Cal.App.2d 29, 36, 142 P.2d 99, and Section 301 Probate Code, relating to jurisdiction of administration of descendants' estates, In re Estate of Glassford, 114 Cal.App.2d 181, 186, 249 P.2d 908, 34 A.L.R.2d 1259, but that nonresident has a more factual or wider meaning in Section 537 of the Code of Civil Procedure with regard to attachment against nonresidents, Hanson v. Graham, 82 Cal. 631, 23 P. 56, 7 L.R.A. 127, and Section 404 Vehicle Code, relating to service to process on nonresidents in auto collision matters. Briggs v. Superior Court, 81 Cal.App.2d 240, 183 P.2d 758, 762. In the Briggs case it is said 81 Cal.App.2d at page 245, 183 P.2d at page 762: ‘Residence, as used in the law, is a most elusive and indefinite term. * * * To determine its meaning, it is necessary to consider the purpose of the act.’ (See also generally Reese and Green: That Elusive Word, ‘Residence’, 6 Vanderbilt Law Review 561; I Beale Conflict of Laws, p. 109 et seq.)

With respect to Section 417 Civil Code we have concluded that ‘resident’ means or includes ‘domiciliary’. The leading case as to that section and its historical interpretation is Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905, 906. In that case the defendant, served personally without the state, was at the time of the commencement of the action ‘a resident of the state of California’ and at the time of the order for service by publication and at the time of the personal service on him in Oregon ‘he was a resident of the state of Oregon’, 41 Cal.2d at page 309, 259 P.2d at page 906. It is pointed out that Section 417 was enacted in 1951 with the following background: For many years the provisions of Sections 412 and 413 Code of Civil Procedure, stated at the beginning of this opinion, had been in the code, but, although these provisions literally were broad enough to authorize a personal judgment based on such extraterritorial service, such was not accepted by our courts. Based on language in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, De La Montanya v. De La Montanya, 112 Cal. 101, 44 P. 345, 347, 32 L.R.A. 82, held that service by publication upon a California resident outside the state was under the federal due process clause insufficient to support a personal judgment, even though the defendant had left the state to avoid service, because ‘the state has no jurisdiction over * * * persons * * * not within its territory.’ This principle derived from Pennoyer v. Neff was re-examined in Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 342, 85 L.Ed. 278, which upheld a personal judgment of a Wyoming court against a domiciliary who had been personally served outside that state. It stated that ‘domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service’ and that the extraterritorial personal service in accordance with a statutory scheme provided by Wyoming satisfied the actual notice requirement of due process. It was held in the Allen case that Section 417 was designed to restrict the wide authority of Section 412 and Section 413 with respect to personal jurisdiction as to defendants who had their residence within the state either at the time of commencement of the action or the time of service and who had been personally served with summons and that a reasoning analogous to the one of Milliken v. Meyer justified the application of Section 417 ‘where a domiciliary at the time of the commencement of the action thereafter changes his state of residence and is personally served with process in the latter state’, 41 Cal.2d at pages 312–313, 259 P.2d at page 909. It would seem that in the Allen case domiciliary and resident, domicile and residence are used as synonyms, although it is not expressly stated that resident in Section 417 means domiciliary. Moreover the history of the adoption of the section is highly significant. The section as introduced in the Senate was drafted by the Committee on Administration of Justice of the State Bar of California, which in its Report to the Governors of the State Bar over the year 1945–46 stated as to its draft:

‘(c) Personal service outside the state on residents. In the course of the study of the foregoing problem the Committee considered the case of Milliken v. Meyer, 1940, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 and the dictum in Pinon v. Pollard, 1945, 1st Dist.Div. 1, 69 Cal.App.2d 129, 158 P.2d 254, wherein it was intimated that the doctrine of the Milliken case does not apply in this State, citing De La Montanya v. De La Montanya, 1896, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82.

‘In order to bring our statutes clearly within the reasoning of the Supreme Court in the Milliken case and define the effect of personal service outside the State, the Committee recommends the adoption of a new section of the Code of Civil Procedure to be numbered 417, reading as follows:

“417. Extent of Jurisdiction Acquired. Where jurisdiction is acquired over a person who is outside of this state by publication of summons in accordance with Sections 412 and 413 of this Code, the Court shall have power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was domiciled in this state at the time of the commencement of the action, or at the time of service.'

‘The Committee believes this section will be sufficient to give a California court jurisdiction to render a personal judgment against a person domiciled in this State who is personally served outside the State, where there has been a compliance with C.C.P. Sections 412 and 413 relating to substituted service. On the other hand this section makes it clear that a personal judgment may be rendered only against a defendant personally served.’ (21 State Bar Journal p. 170. Emphasis added.)

See for the successive slight amendments, ending in the text introduced in the Senate, which still contained the words ‘domiciled in’ and for further comments of the committee: 22 State Bar Journal 261, 23 State Bar Journal 196, 25 State Bar Journal 287. In 1951 the words ‘domiciled in’ in the proposed section were in the Senate amended to read ‘a resident of’. (Senate Daily Journal, May 8, 1951, p. 2076.) Thereafter the Senate Interim Judiciary Committee, on page 37 of its Progress Report filed June 1951, comments as follows:

‘Under present California law, it is impossible to acquire jurisdiction in personam of a resident of California while he is absent from the State, under the construction placed on our present statutory law and without regard to the question of constitutionality. See Pinon v. Pollard, 1945, 69 Cal.App.2d 129, 158 P.2d 254. To abrogate the doctrine of this case, a proposal was made to add Section 417 to the Code of Civil Procedure. This proposal was embodied in Senate Bill No. 302, introduced at the 1951 Regular Session, which adopts the doctrine laid down by the United States Supreme Court in the case of Milliken v. Meyer, 1940, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, and provides that personal jurisdiction can be obtained over a person domiciled in California at the time of the commencement of the action or at the time of service, by means of publication of summons even though he is not in the State at the time of such publication.’ (Information received from the Legislative Counsel. Emphasis added.)

The above facts give no support whatever to appellant's contention that the words ‘domiciled in’ were amended to read ‘a resident of’ for the purpose of describing the more factual concept. The emphasized words indicate that ‘resident of’ and ‘domiciled in’ were by the drafters felt as synonyms. Moreover the comments show clearly that the purpose of the new section was to conform the California law to Milliken v. Meyer which case specifically related to a domiciliary. The amendment was probably made to keep to the terminology mostly used in our codes. The word ‘domicile’ is used there exceptionally only, Sections 129 and 946 Civil Code. It is also conceivable that the legislature used the more indefinite and wider term ‘resident’ to permit the judiciary to define its exact scope. If that were so any person could be considered a resident under Section 417 whose present or past habitation in California caused such a connection with this state as to constitutionally justify bringing him within its jurisdiction for purposes of personal judgment by means of extraterritorial personal service, thereby extending by analogy the rule of Milliken v. Meyer, as seems indicated to some extent in the Allen case, supra. At any rate, however, such wider concept would include a domiciliary.

Appellant relies for his interpretation of residence as a factual concept on Myrick v. Superior Court, Cal.App., 256 P.2d 348, which contains language which seems to distinguish the resident of Section 417 from the domiciliary of Milliken v. Meyer. However in that case the Supreme Court granted a hearing and its opinion, 41 Cal.2d 519, 261 P.2d 255, solely based on the Allen case, although reaching the same result, does not contain any such language, so that said language is not authoritative.

If we accept as true the evidence of respondent, as we must on this appeal, then appellant was a domiciliary who was outside the state temporarily at the time of the commencement of the action and of the service and he was duly brought within the personal jurisdiction of the court. Appellant's situation is the same as the one involved in Milliken v. Meyer, and therefore one for which Section 417 was especially written. It is not true, as contended by appellant, that Section 417 applies only to persons who have given up their residence or domicile in California after the commencement of an action, as was the fact in the Allen and Myrick cases, supra. The question whether ‘resident’ in Section 417 may have a more general meaning then domiciliary does not require decision in this case and we do not express an opinion on it.

We do not consider the statement in the order for service by publication that defendant does not reside in California but resides in Buffalo, New York, as necessarily inconsistent with defendant being a resident of California in the sense of Section 417. See Hanson v. Graham, supra, 82 Cal. at pages 632–633, 23 P. 56, 7 L.R.A. 127. Moreover we see no reason to hold respondent bound by that statement giving it a meaning which is not true. The order was based solely on respondent's affidavit, in which she stated that appellant temporarily resided outside California, in Buffalo, thereby evidently meaning the situation to which she testified, to wit that appellant was on a lecture tour on which he had reached Buffalo for a short sojourn. Such short sojourn does not constitute appellant a ‘resident’ there according to normal terminology. He probably had no residence in that factual sense. The court probably left out ‘temporarily’ to conform to the first situation mentioned in Section 412. It would have been better to state in the affidavit in accord with the second situation of Section 412 of the Code of Civil Procedure that defendant had departed from the state, but appellant does not attack the substituted service on the ground of insufficiency of the affidavit, but recognizes its validity for the purpose of the divorce proper. Neither does he contend that the statement in the order is true, as he at all times urged that his residence and domicile were in Cincinnati, a contention rejected by the trial court. To reverse the court's decision after trial on such a technicality would be wholly inconsistent with our system of procedure. Compare Buxbom v. Smith, 23 Cal.2d 535, 542–543, 145 P.2d 305.

Decree and orders affirmed.

NOURSE, Presiding Justice.

KAUFMAN, J., and DRAPER, Justice pro tem., concur.