138 Iowa 593 | Iowa | 1908
The ruling was without error. There is not presented here the case of a husband taking advantage of the temporary absence of his wife from the State to secure a divorce. Fraud is not charged. Quite to the contrary, defendant was advised that proceedings had been or were about to be instituted, and we infer from the letter written by her that she was asked to accept service, and that she declined to do so. She was in fact residing in the State of Minnesota, and hence beyond the reach of a personal service. The statute which authorizes constructive service by publication of notice has regard only to what are the conditions as to residence in fact existing at the time service is sought to be made. And, it being conceded that the defendant is at the time actually living in another State, service by publication cannot be defeated by a mere assertion on the part of such defendant that within her intention she held a plan to return to a residence in this State at some time in the future. Moreover, it is clear that in this case defendant regarded herself as a resident of the State of Minnesota. It appears from her letter that she had consulted an attorney, and was considering the commencement of a suit in that State to secure a decree of divorce in her favor. Such could have been done only on the theory that she was a good-faith resident of the State. And the force of her letter is not destroyed by her subsequent affidavit to the effect that at some time in the future she expected to again take up her residence in Iowa.
Finding no error, the several orders are affirmed.