*1 P.2d 331 Plaintiff, TEAGUE, C. Howard JU THIRD COURT

The DISTRICT SALT and for DISTRICT DICIAL Milton COUNTY, LAKE Brandon, Defendants. C.

No. 8232.

Supreme Court

Aug.

Secretary of State the Non-Resident Motorist Act. claims meaning “non-resident motorist” within the of that Act brings the matter *2 Rules of in accordance with Utah U.C.A.1953, 65B, rule Civil 78. 2, 1953,

On October a summons and a copy were filed with Secretary of State to obtain substituted upon Teague 41— service 12-8:

' operation by “The use'and nonresi agent or a motor dent his upon highways and over the ap Utah shall be deemed an state of by such pointment nonresident of secretary of state of the state of attorney upon and lawful true his processes legal served all whom proceeding against or him in action operation such use growing out of o.f highways over the a motor vehicle H, Thurman, Worsley Snow, Skeen, & resulting damages this state or loss City, Christenson, Lake Salt G. property said use or Moss, County Attorney, Dwight E. Frank signification shall be a of his City, King, Lake for defendants. L. Salt process shall, agreement against him action which is so McDONOUGH, Chief Justice. served, the same legal be of force and validity personal if served him Original seeking an order ly. process Service shall be prohibiting the permanently by serving copy thereof proceeding with a case entitled Mil- Brandon, Plaintiff, secretary state or by filing ton C. Defendant, copy No. Plain- in his office together pay Civil a fee of Teague is defendant that .action and ment of and such tiff $2 service process shall be sufficient .upon was made service service case, claiming lack'of trial notice provided, that nonresident said person. over his tion proc- copy such service sent days thereafter within ten are No made by contention is by the by mail don, controlling address known his last application time determinative of compliance with affidavit plaintiff’s Non-Resident Motorist Act is the time of attached are this act process. service of is clear from summons.” overwhelming majority of and the wording of statute itself that the utiliza quash the specially to appeared tion of this method of service apparently had summons. whether or not defendant awas nonresi at his actual received injury the time the giving rise to However, the North Carolina. address occurred, cause action resi his last declared compliance subsequent a time Depot, Deseret Chemical address known thereto is C.J.S., immaterial. See 61 Motor copy of Utah, and a County, Tooele Vehicles, 502(4); White, 68 § Wood v. sent there were summons complaint and Kurland v. *3 submitted The mail. registered Chernobil, 260 N.Y. 183 N.E. 380. sta- he was that attorney states Teague’s However, Brandon’s alleged acci- the of time Depot at the at the tioned “defendant, merely that action, August the to rise giving (em is a nonresident of State of Utah Forces Armed of the a member as added)” phasis and contains no allegation per- for located there be he could to his at the time of “many months period of for a sonal This, course, of is not accident. fatal error following” “many months prior to” for the issuance basis of a nor Writ of by an signed report An accident. inasmuch as Rule Prohibition 15 -of the Utah officer investigating of Civil Rules introduced was Patrol Highway 78, provides for liberal amendment auto- Teague’s showing that of purpose pleadings, judgment, even par after license Carolina North carried mobile conform to the ticularly to evidence. Beyond this accident. the time fact, i. e. bearing An whether or not issue nothing further is there evidence a resident at the was time or nonresidence of upon accident, joined at the hearing was on the The fendant. therefore, question quash; he seeks now issue, Rules, pleading under our in the that court prevent 150 Therefore, may if Nor such capable of amendment. nonresidence at time

was upon which evidence accident be assumed.” there was Teague to found court could have the trial that, Recognizing in all probability,, nonresident, judgment here must the controlling facts which residence sought. be a relief denial within the state might be based requirement there no Although is only knowledge within the must set forth statute type, action of this we that the hold giving complaint or affidavit the facts rise plaintiff attempting to use method of non that defendant was a the conclusion must, upon challenge, jurisdictions hold resident, from other prove prima is facie case attacked, plaintiff when the service a nonresident. allegation. as to that present must evidence Whether Brandon has Ruopp, 289 228 Iowa N.W. Welsh showing effect giv- to be Cole, Pendy 211 Iowa 233 N.W. following (1) Teague en to the evidence: Court, 116 v. District Colo. was a soldier in Utah at the time stationed Warwick v. District 180 accident, (2) involved Denver, Colo., County City & Court of in the accident bore North Carolina license Lucas, 704; Rompza Ill.App. plates. As in Welsh 106, N.E.2d 467. stated supra: 762], Ruopp N.W. [228 might take no This “ * * * apparent subject of the fact that a soldier tice special appearance mo- any attack that his time and transfer required quash, showing tion to probably will be temporary. jurisdiction. facts essential other facts before have no us as to * * * basic One of living quar he established actual whether the nonresidence facts was tional brought family he whether ters use and at the the defendants or whether accumulated permanency, allegedly degree caused of some indicia accounts, telephone listings, charge upon which the suit bank damage Likewise, we evi etc. no the time Nonresidence based. *4 permanent residence, a had that he a required. accident Jurisdiction of abode elsewhere or place home who were residents over defendants other a residence than claimed ever ac- the automobile in a importance of such facts determin nonresi- became who later cident by op is indicated this ation be secured not could dents involving in cases posite results reached service. of substituted special method WADE, JJ., concur. CROCKETT and sub temporary assignment persons on Shailer, D.C., 18 v. ject removal: Suit WORTHEN, J., concurs in the result. Jacoby, 90 U.S. v. F.Supp. Johnson v. Carlson HENRIOD, Justice. Reichman, Court, supra; Clark District believe, I concur in the I result. do not a holding that such Colo., all asserts, however, opinion as the main within a nonresident was not might take this court notice of the Services United statute. meaning of a soldier’s fact Harman, Tex. Association Automobile temporary, taking will be certiorari Civ.App., 151 S.W.2d believe, by any justified, not I 86 L.Ed. 62 S.Ct. U.S. of this court’or under the cision Coun of Alameda Superior Court Briggs 78-25-1, U.C.A.1953, dealing of Title holding Cal.App.2d ty, 81 may judicially which the matters of courts personnel military facts different notice. were nonresi state within temporarily Although they are factors to be consid- dents. case, every ered the main those listed opinion residency so pointing are not considering whether or not Without significantly applicable to as to other soldiers report showing that persons, since former seldom establish out-of-state license had themselves, quarters almost never have evidence, we hold that such telephone bank or charge list- not sufficient to es would fact alone ings in their own names. driver was nonresident. tablish Court, supra, District Suit v. my opinion the statute for sub- Shailer, supra. case, very stituted service involved administered, since,

carefully should be ad- been cited to a case protect mittedly designed to resi- own scant evidence we have holding that such non-residents, against dents transient hit-run support was sufficient to us before here op- could be used as instrument nonresidence, and since the ele finding of pression having poor if one unmeritor- necessary pros- could refrain serving case ment ious proof having ample case, personally, must lie with opportunity the failure don’s do, and then wait until he denying reasonably erred in so The trial him. away, the defendant is far and hence, is sure the alternative writ quash; himself, defend to return and permanent. unable will made issued heretofore accomplished. service is Costs