Venable v. Paulding

By the Court. Ripley, Ch. J. Gen. Stat. ch. 66, s. 15, provides, that if, after the cause of action accrues, the defendant departs from and resides out of the state, the time of his ab- ■ sence is not part of the time limited for the commencement of the action. The plaintiff contends that this is to be construed as if it had, in terms, provided that the statute should be suspended, whenever and so long as defendant is physically without the sta+§, and has no house of his usual abode within it. In such a case, in his view, the defendant cannot properly be said to reside in the state. To depart from and reside out of the state, and to be absent from and reside out of the state, are expressions, in this connection, so similar in meaning as to render decisions upon statutes using the latter phraseology applicable here. The rule is established in New Hampshire, chat every absence from the state, temporary or otherwise, if it be such that the creditor cannot, during' its continuance, make a legal service upon the debtor, must be excluded (Gilman vs. Cutts, 3 Foster, 376; Ward vs. Cole, 32 N. H. 452; Ward vs. Herd, 38 N. H. 35); and the plaintiff seems to consider his position above stated to be identical therewith. . This, however, is scarcely so, for unless there be a person of — 492 — suitable age and discretion in such house, with whom a copy of the summons may be left, service cannot be got upon the debtor in this state. Gen. Stat., ch. 66, s. 48, sub. 4. But if the propositions were identical, the weight of authority is, we think, decidedly against the rule of the New Hampshire court. Burroughs vs. Bloomer, 5 Denio, 532; Wheeler vs. Webster, 1 E. D. Smith, 1; Hickock vs. Bliss, 34 Barb. 321; Hackett vs. Kendall, 23 Vt. 275; Hall vs. Nesmith, 28 Id. 791; Drew vs. Drew. 37 Me. 389; Buckman vs. Thompson, 38 Me. 171; Collister vs. Healey, 6 Gray, 517; Sleeper vs. Page, 15 Gray, 349; Langdon vs. Drew, 6 Allen, 423; Hallett vs. Bassett, 100 Mass. 169; Johnson vs. Smith, 43 Missouri, 499. “ Resides out of the state,” and “ the time of his absence,” have the same meaning; they are correlative expressions. . So that while the debtor resided out of, he was absent from the state. Burroughs vs. Bloomer, supra. One cannot reside in the state, and at the same time l’eside out of it. To depart from and reside out of the state, means a change of residence from this state to some other state, not a temporary or occasional absence. Hickok vs. Bliss, supra. There is, as it seems to us, no tenable middle ground between the position taken in New Hampshire, and the doctrine established in Massachusetts, viz.: that such residence out of the state, must be not merely temporary and occasional, but of such character, and with such intent, as to constitute a change of domicil, (Hallett vs. Bassett,) understanding “domicil” as the Massachusetts court understands it to mean in this connection, the debtor’s home or place of abode. Langdon vs. Drew, supra. No one word is more nearly synonymous with the word domicil, than our word “ home.” White vs. Brown, 1 Wallace, Jr., 262. In the present case, the question for the jury would have — 493 — been as to the legal domicil, the home or place of abode of the defendant during the time which has elapsed since the cause of action accrued. The cause of action accrued July 8, 1857. The. summons was served July 27, 1872. •A verdict for plaintiff must have been on the ground that defendant’s domicil had been elsewhere than in Minnesota for something over nine years of this period of time. Hallett v. Bassett, supra. If there was no evidence which tended to prove the contrary, or, which comes to the same thing, if a verdict for defendant could not he allowed to stand because not justified by the evidence, a new trial is not to be granted. The departure from the state is not necessarily to be understood of a departure with intent to permanently change the residence. Johnson vs. Smith, supra. The defendant in this case left Minnesota for Washington in April, 1861, with the intention of obtaining an appointment under government, and never returned till August, 1870. Though he might have gone with the original intention of returning to St. Peter, yet in that. length of time his general residence, his home, might have become fixed at Washington. Amer. Lea. Cas. 697, note to Guier vs. O’Daniel, citing The Harmony, 2 Rob. Adm’x Rep.; Bruce vs. Bruce, 2 Bos. & Pull. 229, n.; Butler vs. Hopper, 1 Washington C. C. Rep. 500. Whether it had become so or not after he left the U. S. service and became the clerk of a congressional committee, we need not enquire. An answer to the question as to where, in Jaw, this defendant’s home was during a part of his absence from the state, for enough thereof, at least, as would suffice to bar this demand, certainly depends upon a comparison of circumstances, a weighing of the evidence. If when he left Minnesota he had a special purpose of ob- . — 494 — taining employment under government, this, of course, v; ould not necessarily involve the idea or intention of a change of i-esidence. He might obtain employment which would require him to live here. That which he did obtain was not, in its nature, such as to attach him to any particular place other than Minnesota. St. Peter was his home, his usual place *of abode in April, 1861. It remained so till he acquired another : and if it remained his home for a few months only after he left the state, that would bar this action. He says he never intended to change his residence. He gave in his vote in 1862, and 1864, to the army commissioner. The laws of Minnesota {Laws of 1860, ch. 18, sec. 49, etseq.) passed while defendant was a member of the legislature declared him to have lost his residence for the purpose of voting, unless his departure from the state had been for temporary purposes only, with the intention of returning, and if he had removed to another state with the intention of remaining for an indefinite time, and as a place of present residence, notwithstanding he entertained an intention of returning at some future period, and forbade him in that event to vote, making it a public offense to do so. And before giving in his vote he was obliged to swear that he had been an inhabitant of the state of Minnesota for four months immediately preceding the election in question, and an actual resident of the election district (in which he offered to vote) for the ten days immediately preceding the election in question. Laws of 1861, ch. 15, sec. 74. The act of voting, under these circumstances, tends to show that his departure and absence from the state was at that time for temporary purposes only, and with the intention of returning, while it would tend to negative any theory that he had removed to Washington with the intention of remaining for an indefinite time, and as a place of present residence, notwith — 495 — standing he entertained an intention of returning at some future period. Offering to vote by a sailor, was considered to” be a striking fact to show that he considered himself in the light of a citizen. “ The evidence resulting from the offer of intention to settle and reside, is the same as if it had been actually received.” Guier vs. O’Daniel, 1 Amer. Lea. Ca. 733. What the election law considered to negative residence in the state, would also, it is to be noticed, on general principles negative domicil, or home there; for where a person lives is taken prima facie to be his domicil, unless other facts establish the contrary, (Ennis vs. Smith, 14 How. 400,) and if he was living in Washington as a place of present residence, though he had an intention of retaining his domicil in and returning to Minnesota- at some future indefinite period, he could not be said to retain a dwelling place in Minnesota, and his domicil would not be there. (Holmes vs. Greene, 7 Gray, 299.) Evidence tending to negative such a state of facts would therefore be material for the defendant in the present case, and Voting as above would have such a tendency. On the other hand domicil never depends on a bald intent. Holmes vs. Greene, supra. The character of the defendant’s residence in Washington is to be considered. His testimony will bear the construction that he made it from the time of his appointment in April, or May, 1861, his place of residence, leaving it for the places to which he might from time to time be sent, but always returning there as to a place of present residence. As a paymaster in the army he might have continued to live at St. Peter. He might have brought his wife there and returned there after each absence on duty. His not doing so is a fact to be considered. Then, Minnesota was not his domicil of origin. It would therefore be more easily changed. The defendant had no establishment there, appears to have owned no real estate there, — 496 — and though we see no reason to question the correctness of his position that he had acquired a domicil in Minnesota, it was not one which would cling very strongly. It seems to be considered in Langdon vs. Drew, supra, that while one continues to be domiciled in a state, he must have a “ last usual place of abode,” where a summons could be served, which under Massachusetts laws could be perfected into a valid judgment. The question suggests itself, whether defendant, married, and living with his wife in Washington, had not abandoned as a home, as a last usual place of abode, the back room of the rented office in St. Peter, in which he states he was living in the spring of 1861. If he had, and was residing in Washington with the purpose of remaining there an indefinite time, and without keeping up any animus revertendi, or intention to return to such abandoned home, his domicil was in Washington. Willraham vs. Ludlow, 99 Mass. 587; Sleeper vs. Paige, 15 Gray, 349; Whitney v. Sherborn, 12 Allen, 111. All these matters, and others not alluded to, but appearing in evidence, and bearing respectively pro and con on the question of defendant’s domicil, were for a jury to weigh. We do not undertake to do so. We do not see, however, upon what ground the district court, if the jury upon such weighing of the evidence under proper instructions had returned a verdict for defendant, could have felt itself constrained to set it aside as against the weight of the evidence. It follows that the order denying a new trial should be reversed. There was no error in excluding the testimony of defendant at folio 34 of the paper book. It at the most only tended to show the belief of those who appointed him to office or made up the records to which he refers. As to the testimony excluded on fol. 42 as plaintiff says, it might be evidence to show a conversion by Gov. Austin of defendant’s effects, but it has no bearing on the question — 497 — whether defendant’s home, after April, 1861, was in Minnesota or Washington. Verdict set aside and new trial ordered.