Opinion by
Thе plaintiff in the trial court will be designated as plaintiff here, and the defendant Prank McVieker as defendant hеre.
On January 8, 1913, plaintiff obtained a judgment against defendant Prank McVieker and several other defendants in an action to foreclose a real estate mortgage. An order of sale was issued and said property sold, and, there being a deficiency judgment, an execution was issued and levied upon certain real property belonging to defendant Prank McVieker. This property was duly advertised and sold, and thereuрon said defendant appeared specially and filed objection to the confirmation of sаle, and also moved to set said judgment aside upon -the alleged ground that no legal service was had uрon him.
The service of process upon defendant in the original action was had, as shown by the sheriff’s return, “by lеaving a .certified copy of the summons for defendant with his wife at his usual place of residence in Garfield county, Okla.” Judgment was entered by default.
It appears from the affidavits and oral evidence introducеd at the hearing upon -the motions that defendant, with his wife and children, had resided at 715 West Oklahoma Ave., Enid, Okla., for quite awhile (the exact time not being disclosed 'by the evidence) before the sheriff left the summons for defendant with his wife at this place on the 11th day of May, 1912. It further appears that from about the last of February or the first of March, 1912, the defendant spent most of his time on a farm owned by him near Orescent, in Logan county, which he claimed at the hearing was his residence at all times after the date last mentioned above. At the time he wеnt out to said farm he took some bedding for himself and feed for his stock, and his wife and children also went out to the farm shortly afterwards. Ho-w long they stayed there the evidence does not disclose, but the evidence dоes show that within a month she and the children were again living at their old home in Enid, but it is claimed by defendant that they had tаken up their actual residence with him on his farm and had returned to Enid to send their children to school, and that shе and the children again returned to the farm in Logan county as soon as the school term closed. It was furthеr shown that defendant was frequently seen in Enid after the date he claimed to have taken up his residencе in Logan county, but at the hearing he claimed that on these occasions he had returned to Enid either оn business or to visit his family.
The trial court found in favor of defendant upon the issue joined on the motion to vacate the judgment, but we are unable to *47 agree with his conclusions. As a whole, the evidence upon the pаrt of the defendant is very vague, indefinite, and unsatisfactory and the claim of residence in Logan county аt the time the summons was left with his wife in Enid appears to be a mere subterfuge in an endeavor to evade the results of the judgment taken against him. There were several defendants in the suit, and all of them defaulted. The action was a suit upon a note, and for the foreclosure of a mortgage.
The property named in the mortgage was duly sold under an order of sale, and it was not until other property of defendant was levied оn to make the deficiency did defendant file his motion to vacate the judgment, which was about two years afterwards.
It is said in Schultz v. Barrows et al.,
“It was declared in Keith v. Stetter,25 Kan. 70 , that the residence of a man having a family which he maintains is .prima facie where the family dwells, аnd that a man’s acts and conduct are more to be considered in determining the change of residence than any mere declarations of intent; and, when the question of residence or non residence is doubtful, the question should be so determined as will best secure the rights of creditors and others having dealings with such party.”
We take the following from Fidelity & Deposit Co. v. Sheahan,
“There must be a settled, fixed abode, an intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence within the legal meaning of that term.”
“The term ‘residence’ simply means a settled or fixed abode of a character indicating permanency, at least for аn indefinite time. It signifies a party’s permanent home and principal establishment, to which, whenever he is absent, he has the intention of returning.” In re Clark,15 N. Y. Supp. 370 ; Williams v. Farmers’ Gin & Grain Co.,13 Okla. 5 , 73 Pas. 269; Berryhill v. Sepp,106 Minn. 458 ,119 N. W. 404 , 21 L. R. A. (N. S.) 344; Northwestern & P. H. Bank v. Ridpath, 29 Wash, 687,70 Pac. 139 .
While it is true that the wife’s residence does not control or fix her husband’s residеnce and that where a man’s family resides is not necessarily the place of his residence, yet wherе there is no separation in the case of a married man his residence is prima facie where his wifе and family reside. Missouri, Kansas & Texas Trust Co. v. Norris,
The judgment should be reversed, with instructions to the trial court to dismiss the motions filed by defendant.
By the Court: It is so ordered.