87 Iowa 479 | Iowa | 1893
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 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.