Rutland Marble Co. v. Bliss

The opinion of the court was delivered by Royce, Ch. J. The demands that are described in the referee’s report were all due and payable in April, 1874. At that time the defendant resided and was doing business in Boston. He failed in business in 1875. In July of that year, [30] he, with his family, consisting of his wife and one child, came to Brandon to reside. In the winter of 1876-7, he was engaged in the marble business in Middlebury; and that fact was known to the superintendent of the plaintiff company. His residence thus commenced in Brandon has been ever since continued, unless his absences, and those of his family from the State, as shown by the report, have interrupted it. In February, 1877, the defendant went to New York to look for business, leaving his wife in Brandon. She was with him >in NeAr York a small portion of the time after that; and while there they boarded, except in the winter of 1880-81, when they kept house. They had no home in New York, and always intended to keep their residence in Brandon. The defendant was frequently in Brandon with his family, and under such circumstances that his presence there could have been easily ascertained. His stay in New York was for business purposes, and was not intended to be permanent; for it is found that he had no definite intention of making New York a place of residence for his family, but regarded Brandon as their home, and expected his wife to return there, as she did from time to time, after being with him in New York. In order to arrest the running of the statute, it must appear that the defendant was absent from and resided out of the State. It is not sufficient to show absence; but he must have had a residence in some other State. If he has a residence in this State, so that process can be served upon bim in the manner provided by law, the running of the statute is not arrested by his absence from the State. A mere temporary residence in another State does not constitute the party a resident of that State within the meaning of the statute, so long as he keeps a residence in this State. Upon the facts found, the right to collect* the demands in suit was barred by the Statute of Limitations, and the pro forma judgment of the County Court is reversed, and judgment rendered for the defendant.