11 S.D. 325 | S.D. | 1898
On March 11, 1897, the plaintiff caused a summons and complaint to be. served upon the defendant Hubbard, as returned by the sheriff as follows: “I personally served the said summons and complaint on the within-named defendant, C. W. Hubbard, by delivering to and leaving at his dwelling house, in the presence of Ellen Hubbard, a true and correct copy thereof, the said Ellen Hubbard being a member of said defendant’s, C. W. Hubbard’s, family, to-wit, his wife, and over the age of 14 years, and the defendant, C. W. Hubbard, not being conveniently found. Dated March 11th, 1897.” Said defendant making no appearance, judgment was entered against him on May 4, 1897. In this judgment is, among others, the follow¿ng recital: “The summons and complaint in
Section 4898, Comp. Laws, under which the service was made, provides that ‘‘the summons shall be served by delivering a copy thereof as follows: * * * (6) In all other cases to the defendant personally; and if the defendant cannot conveniently be found, by leaving a copy thereof at his dwelling house in the presence of one or more of the members of his family, over the age of fourteen years. * * * Service made in any of the modes provided in this section .shall be taken and held to be personal service.” The principal question involved in .this case is as to the construction to be given to the term “dwelling house,” as used in that section. Bouvier defines “dwelling house” as follows: “A building inhabited by man; a house usually occupied by the person there residing and his family; the apartment, building or cluster of buildings in which a man and his Jamily reside.” 1 Bouv. Law Diet. p. 514. Anderson thus defines it: A person has his dwelling where he resides permanently, or from which he has no present intention of removing.” And. Law Diet. 389. Webster defines “dwelling”: “Habitation; place or house in which a person lives; abode; domicile.” In view of these definitions, we are of
The facts disclosed by the record in this case are that defendant, with his family, consisting of his wife, two daughters, and a sqn, resided in Sioux Falls, for about 12 years prior to January 10, 1897; that at the latter date he, with his family, lived on the corner of Phillips avenue and Thirteenth street; that on that day he left for Chicago, on private business, where he remained until about July, 1897; that, on or about March 1st, the-family were required to vacate the house so occupied by them on Phillips avenue, and did so, by moving to the corner of Minnesota avenue and Fourteenth street, at which place the summons and complaint were left with the wife on March 11th, as returned by the officer; and that, on or about April 10th, Mrs. Hubbard left Sioux Falls, and went to Brattleboro, Vt., where she was at the time of making her affidavit, September 7, 1897. The house to which Mrs. Hubbard moved on Minnesota avenue was one which had been rented by her prospective son-in-law, and in which he and his wife, a daughter of the defendant, resided after March 13th. Mrs. Hubbard took with her to this house the household goods and furniture used by her in the residence of the'defendant on Phillips avenue; but it is quite apparent from the evidence that she did not intend to make this house her home for any length of time, and that she occupied it solely as a temporary home until her daughter should be married (which event took place on the 13th day of March, two days after the summons was served), and until she could make her arrangements to leave Sioux Falls. It may be