Cochrane v. Bussche

Andersoít, J.: This is an appeal from an order of the third district court dissolving an attachment sued out in this action on the ground that the defendant was not residing within the Territory. The defendant was residing in Salt Lake City from March, 1888, to August, 1889, with his wife and child. On the date last named his wife separated from him, and went to Denver, Colo., to live, where she still resides. McCornick & Co. and Walter Pavey were summoned as garnishees, and answered that Pavey held certain moneys belonging to McCornick & Go. and the defendant, to which each were entitled to certain portions thereof. The affidavits further tended to show that the defendant was not assessed with any property in Salt Lake City for the year 1890, and that the defendant had 234 left this Territory with the expressed intention of going to Galveston to make investments. The defendant has filed an amended or additional abstract, from which it appears that the defendant resided in Salt Lake City from February 13, 1888, to April 3, 1890, when he left for Galveston, intending to proceed thence to Europe for his health; that he did not go to Galveston, but proceeded directly to Europe, and remained there until August, 1890; that while absent from Utah Territory, he had a room in Salt Lake City, in which he slept when there, and in which he stored his furniture, and left the same in the care of one McHugh; that while absent he continued to pay the rent of the room, and never thought of changing his residence; that his stay in Europe was prolonged because of ill health; that he left his business interests in Salt Lake City in charge of W. S. Pavey, giving a list of property left by him in the hands of Pavey, and that he had no business interests outside of Utah. Also the affidavit of Pavey was filed to the effect that the defendant had told him he was going to Galveston on a visit, and thence to Europe for his health, and would soon return to Utah; that his absence would be temporary only; that while absent he corresponded with affiant, and in his letters frequently expressed his intention of returning to Utah, and to there continue the conduct of his ordinary business. The court dissolved the attachment, and this appeal is from the order of dissolution made by the court. The record shows that the motion to dissolve the attachment was heard and determined upon affidavits on behalf of the respective parties, and upon the oral testimony of O. W. Powers, whose testimony is not contained in the record. The court dissolved the attachment upon the ground that the defendant was not a non-resident of the Territory. All the evidence before the court, and on 235 which the court acted in dissolving the attachment, not being in the record, we must presume the order of the court dissolving the attachment was based on sufficient evidence. The order of the district court is therefore affirmed. MINER, J., and BlaoKburn, J., concurred.