Waller v. Lea

Bullard, J., delivered the opinion of the court. The defendant being sued in the court of the first district, pleaded that he is a resident of the parish of St. Tammany, where he avers his domicil was established at a period long prior to the institution of the suit. The court having sustained his exception, the plaintiff appealed. It is not denied that the defendant was for a long time domiciliated and had'his residence in the city of New-Orleans, where he held the office of clerk of the District Court of the United States. It appears, that on the 28th February, 1834, he gave notice to the parish judge of the parish of St. Tammany, that he had changed his domicil from New-Orleans to that parish, where he had fixed it since the 1st of January past. He gave no notice to the parish judge of the parish of New-Orleans, of his intention to change his domicil, nor did he finally remove with his family, from the city, until after the commencement of this suit. Our only inquiry must be, whether, on the 9th of April, 1834, when service of citation was made on the defendant, he had legally changed his domicil, so as to deprive the court of the first district of jurisdiction. “A change of domicil is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.” Louisiana Code, 43. The intention alone, however formally expressed, would not suffice ; it must he complied with by the act of residing in the new parish. If the defendant had made his declaration according to the Code, before both of the judges of the parishes from and to which he intended to remove, the act of removing would have created a change of domicil. When such declaration is not made, the proof of this intention will depend on circumstances. Louisiana Code, article 45. 13 Sirey, 2d part, 353. 8 Martin, 709. 9 Martin, 491. 4 N. S., 57. ■It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, the [216] non-suit set aside, and the case remanded for further proceedings therein, according to law, and that the appellee pay the costs of this appeal.