Smith v. SmithSmith v. Smith
- Reporters:
- , ,
- Before:
- Spence
— Defendant appeals from certain portions of the interlocutory decree of divorce and related orders. He challenges the propriety of the trial court’s assumption of
Section 417 of the Code of Civil Procedure provides: “Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with
On October 27, 1953, plaintiff filed her complaint for divorce, alimony, division of personal property, counsel fees and costs. On the same day she obtained an order directing service of summons by publication. Her supporting affidavit states that defendant “temporarily resides out of the State of California, to-wit: Buffalo, New York”; and the order states that it appears from the affidavit that defendant ‘ ‘ does not reside” in California and “resides” in Buffalo, New York. Defendant was personally served in Buffalo on October 30, 1953. Following defendant’s default and on December 3. 1953, plaintiff was granted an interlocutory decree of divorce — including provision for alimony and the division of personal property — and a separate order awarding attorney fees and costs.
Thereafter, defendant, appearing specially, moved to vacate the decree, except for its declaration that plaintiff was entitled to a divorce, and the order, on the ground that no jurisdiction over his person had been obtained because he was not “a resident” of this state at the time of the commencement of the action or at the time of service. (
At the hearing of the motion to vacate, plaintiff testified, supporting her statements in part with documentary evidence: That for more than 20 years prior to their separation in January, 1953, she and defendant had resided together in Alameda County; that defendant had long maintained a real estate business in Oakland, the last eight years being at the same address; that in January, 1953, he left California on an extended lecture and book-selling tour, visiting many cities throughout the United States but remaining in each place no more than a week or ten days; that he returned to Alameda County for four days in May, 1953, and then resumed his tour, meanwhile, as before, communicating regularly with the manager of his Oakland real estate office, maintaining his address for mail and bills at the address of his Oakland business, where he kept the supplies for his book-selling tour ; and that throughout 1953 defendant’s daily mail, received at his Oakland business address, was forwarded to him at the various cities where he sojourned. During 1953 defendant kept his business bank account in California and made withdrawals from it; he left his automobile registered in California and retained his California business address for federal income tax purposes; he left clothing and other personal property with plaintiff at her home in Oakland, Alameda County; and he repeatedly expressed to plaintiff and others, both orally and in writing, his intention to return to Oakland when a property settlement with plaintiff was made and he had earned enough money to pay outstanding bills, in line with his plan to keep control of the policy and management of his California real estate business and to build up the organization.
The trial court denied defendant’s motion to vacate and granted plaintiff additional attorney fees. Defendant appeals from this order of denial, from the interlocutory decree, except insofar as it declares plaintiff entitled to a divorce, and from the orders for attorney fees and costs. While the court did not make a specific finding as to the domicile of defendant, it is clear from the record that it denied relief to defendant upon acceptance of plaintiff’s claim that defendant was at the time of the commencement of the divorce action a domiciliary of this state, and hence the court had
With respect to section 417 of the Code of Civil Procedure, it must be concluded that the word “resident” is used in reference to domicile, and hence means “domiciliary.” In this connection, the historical background of section 417, enacted in 1951, is significant. For many years sections 412 and 413 had been in our code, in Language literally broad enough to have permitted a personal judgment against a defendant based on substituted service outside the state. However, the right to the entry of such personal judgment was denied. The leading case was
Pennoyer
v.
Neff
(1877), 95 U.S. 714 [24 L.Ed. 565], which declared that a court could not acquire personal jurisdiction over a nonresident defendant in an action through the service of process outside the state of the forum. This theory of jurisdiction, based on the concept of “power” over the person of defendant, was then applied in
De la Montanya
v.
Be la Montanya
(1896), 112 Cal. 101 [44 P. 345, 53 Am.St.Rep. 165, 32 L.R.A. 82], so as to hold that service by publication upon a defendant outside the state was insufficient under the federal due process clause to support a personal judgment, even though the defendant was a domiciliary and had left the state to avoid service. The factual distinction of a domiciliary defendant was rejected with the statement that “domicile has never . . been made the test of jurisdiction to render a personal judgment.” (P. 109.) Then in
Milliken
v.
Meyer
(1940), 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357], these principles of jurisdiction were reexamined, and it was decided that despite the broad language of
Pennoyer
v.
Neff, supra,
domicile in the state where a personal action is brought makes an absent defendant amenable to personal
Then in report to the Governors of the State Bar for the year 1945-1946, the Committee on Administration of Justice of the State Bar of California recommended legislation on the matter. It specifically proposed the “adoption of a new section of the Code of Civil Procedure to be numbered 417,” with the original draft using the word “domiciled in” where the words ‘ ‘ a resident of ’ ’ now appear. This recommendation was made so as to abrogate the dictum in Pinon v. Pollard, supra, and “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.” (21 State Bar Journal, p. 170.) The committee’s successive reports used the words “domicile” and “residence” interchangeably, but the text as introduced in the Senate, after slight amendments, still contained the words “domiciled in.” (See 22 State Bar Journal, p. 261; 23 State Bar Journal, p. 196; 25 State Bar Journal, p. 287.) In 1951, when acting on the’ proposed section, the Senate changed those words to read “a resident of.” (Senate Daily Journal, May 8, 1951, vol. 2, Regular Session, p. 2076.) A Progress Report of the Senate Interim Judiciary Committee filed in June, 1951 (p. 37), made no mention of the change in wording, used the words ‘ ‘ domicile ’ ’ and “residence” as synonymous, and stated that the purpose of the proposed section 417 as embodied in Senate Bill No. 302 was to abrogate the doctrine of the Pinon ease and to conform the California law to “the doctrine laid down by the United States Supreme Court in the ease of Milliken v. Meyer (1940), 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357].” (Vol. 1, Appendix to Journal of Senate, Regular Session 1951.)
In view of this legislative background, defendant unavailingly argues that the words ‘1 domiciled in ’ ’ were stricken from the proposed section 417 and the words “a resident of” were inserted for the purpose of describing the more factual concept of residence, even in the sense of physical presence. Rather, it clearly appears that the drafters of the statute regarded the words “a resident of” and “domiciled in” as
In Allen v. Superior Court (1953), 41 Cal.2d 306 [259 P.2d 905], an automobile accident case, the application of section 417 was at issue where the defendant was “a resident of” California at the time of commencement of the action but was “no longer a resident” when the order for out-of-state service was made and he was personally served in Oregon. After reviewing the above-noted judicial background culminating in Milliken v. Meyer, supra, 311 U.S. 457, the Allen case held that section 417 of our Code of Civil Procedure .was designed to restrict the broad authority of sections 412 and 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 at the time of service, and who had been personally served with summons; and that reasoning analogous to that prevailing in 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 312-313.) Thus, the Allen case, relying on the domiciliary rule of the Milliken ease (where the statute provided for substituted service on “a resident” of the state who had departed therefrom to avoid service) used the terms “domiciliary” and “resident,” “domicile” and “residence” as synonymous. (See Ehrenzweig and Mills, “Personal Service Outside the State,” 41 Cal.L. Rev. 383.)
It is true, as noted by defendant, that in the Allen case as well as in
Myrick
v.
Superior Court
(1953), 41 Cal.2d 519 [261 P.2d 255], the absent defendant on whom extraterritorial personal service was made was not only domiciled in California but was likewise physically present in this state
Defendant points to the statement in the order for service by publication that defendant “does not reside” within California but “resides” in Buffalo and claims that it is inconsistent with the requirement of section 417 that defendant be “a resident of this state” at the specified times. The alleged inconsistency exists in the main under his views as to the meaning of the section, and not as it has been above construed. However, it must be conceded that any purported discrepancy might have been avoided through the use of wording which would have more accurately reflected what was actually meant. The order was based solely on plaintiff’s affidavit, in which she stated that defendant temporarily resided outside California and in Buffalo, New York, thereby evidently meaning the situation to which she later testified— that defendant was on a lecture tour, and that Buffalo was the city he had then reached for a short sojourn. Such mere temporary sojourn, involving no more than physical presence, would not constitute defendant a resident there according to the ordinary concept of the term. (See Reese and Green,
“That Elusive Word, ‘Residence,’ ”
6 Vanderbilt L.Rev. 561; 1 Beale, Conflict of Laws, pp. 109-110.) The trial court probably left out “temporarily” to conform to the first situ
The decree and orders are affirmed.
Gibson, C. J.. Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred.