De Pier v. Maddox

[461]

MUSSELL, J.

This is an appeal by plaintiffs from an order quashing service of summons on defendant Howard W. Maddox.

Plaintiffs filed this action for damages for personal injuries alleged to have been sustained in an automobile accident which occurred on February 5, 1944. Service of summons npon the defendant and respondent, Howard W. Maddox, owner and operator of one of the automobiles involved was made in the manner provided by section 404 of the Vehicle Code for service of process on nonresidents. At the time of the service of summons respondent was living in the State of Alabama and was a resident of that state. After such service of process, respondent made a special appearance in the action for the sole purpose of filing his motion to quash the purported service of summons. The motion was based upon the ground that respondent was a resident of the State of California at the time of the happening of the accident and that the court had not obtained jurisdiction over him by the attempted nonresident service of process. The motion was heard upon affidavits and other documents referred to therein.

From these affidavits it appears that respondent was a member of the United States Marine Corps and came to San Diego, California, from the State of Alabama on July 3, 1941, being stationed at the Marine Corps Base in San Diego, where he remained, with the exception of overseas duty from which he returned to San Diego in November, 1943; that he was married in San Diego on January 9, 1944, and that it was stated in the marriage license, procured in San Diego, that he was a resident of this state at that time; that respondent and his wife made their home and residence at 435 Bancroft Street, San Diego; that respondent received his mail at the Bancroft Street address and continued to make it his home and residence until his return from overseas duty in 1946; that on January 10, 1944, respondent purchased the automobile which was later involved in this action, from dealers in San Diego, and forwarded to the Motor Vehicle Department at Sacramento the certificate of ownership in which his residence was stated as 435 Bancroft Street, San Diego, California; that the accident giving rise to this action occurred on the 5th day of February, 1944, while respondent was going from his work to his residence on Bancroft Street; that on March 30, 1944, respondent sold this automobile, giving his address as 435 Bancroft Street, San Diego; that from the time respondent commenced to reside