DeCorvet v. Dolan , 7 Wash. 365 ( 1893 )

Stiles, J.

(dissenting). I do not think that it was within the power of the" territorial legislature to enact the bald rule which the court in this case has enforced. A resident of the territory under the act of 1877 was entitled to personal service of summons issued in a case brought against him, or, at least, to have the summons left with some suitable person at his dwelling house or usual place of abode; and a non-resident was entitled to precisely the same treatment, if he could be found within the limits of the jurisdiction of the court.

It is inseparable from any showing of non-residence by which a plaintiff seeks to entitle himself to a service by publication, that it be made to appear that, although the defendant is a non-resident, he cannot at the time of the proposed service be served personally. The mere fact that § 65 provided for an affidavit “stating'" that the defendant was a non-resident, in my judgment means no more than if it had used the word “showing.” It has been universally held that the mere allegation in an affidavit of this kind stating non-residence, or absence, or inability to make service, is a conclusion of law which is insufficient to base a substituted service upon. Ricketson v. Richardson, 26 Cal. 149; Forbes v. Hyde, 31 Cal. 342; Yolo County v. Knight, 70 Cal. 431 (11 Pac. Rep. 662); Braly v. Seaman, 30 Cal. 611; Thompson v. Shiawassee Circuit Judge, 54 Mich. 236 (19 N. W. Rep. 967); Harrington v. Loomis, 10 Minn. 366; Beach v. Beach, 6 Dak. 371 (43 N. W. 701); Carleton v. Carleton, 85 N. Y. 313; Kennedy v. N. Y Life Ins. & Trust Co., 32 Hun, 35; McDonald v. Cooper, 32 Fed. Rep. 748; Alderson v. Marshall, 7 Mont. 288 (16 Pac. Rep. 576); Neff v. Pennoyer, 3 Sawy. 274; Palmer v. McMaster, 33 Pac. Rep. 132; McCracken v. Flanagan, 127 N. Y. 493 (28 N. E. Rep. 385).

A non-resident, within the terms of this statute as interpreted, might be one whose actual domicile was in the territory, at a place well known to the plaintiff, and who, if he had merely declared the intention of giving up his foreign residence, would be entitled to personal service.