42 Miss. 186 | Miss. | 1868
delivered the opinion of the court.
This suit was commenced by attachment, sired out at the instance of Newcomer & Iiausler against Alice E. Alston, on the ground that she was a non-resident of this -State. The writ of attachment was levied on certain real estate in the city of Jackson, in this State, as the property of the defendant in the attachment, and made returnable to the May Term, 1867, of the Circuit Court of Hinds county for the First District thereof.
- At the return term of the said writ of attachment, the defendant therein appeared and filed a plea in abatement, traversing the truth of the alleged cause for which said attachment was sued out.
And at the November Term, 1867, of said court, the issue upon this plea was submitted to a jury, who found that the said attachment was rightfully sued out j whereupon the defendant pleaded in bar of the action the several pleas of non assumpsit, payment, and the Statute of Limitations, upon which issues were joined and submitted to a jury, who found a verdict for' the plaintiffs for the sum of $827.25, for which judgment was rendered in favor of the plaintiffs against the defendant.-
From this judgment the defendant prosecutes a writ of error to this court.
It is conceded by the counsel for the plaintiff in error that
G. II. Sheldon, a witness for the'plaintiffs below, residing at Havana, in Hale county, in the State of Alabama, testified that he had known the defendant, Alice E. Alston, about nineteen years; that, as postmaster at Havana,he had mailed letters to her at Jackson, Mississippi, for several years prior to 1864; since that time, or about that time, she has been addressed by letters at different points in Sumter, Greene, and Hale counties, in the State of Alabama, and supposes she was residing at the points where her letters were addressed; and that she has remained in that State ever since, with, perhaps, an 'occasional absence; ‘ that she has resided, since she came to Alabama, at different points in Greene, Sumter, and Hale counties, and for the last twelve months in this vicinity, within the county of Hale.
H. B. Allen, a witness residing in the State of Alabama, testified on the part of the plaintiffs below that the children of Mrs. Alston were with her in the State of Alabama, and were going to .school most of the time.
Newcomer, on the part of the plaintiff's, testified that the defendant, Mrs. Alston, left the city of Jackson, Mississippi, in'the month of May, 1863, and went to the State of Alabama, taking her family, consisting of three children, with her; witness at the time lived in Jackson; that a day or two after Mrs. Alston left, Mrs. Martin moved into Mrs. Alston’s house, and occupied it as a tenant. None of Mrs. Alston’s servants were left on the premises, which have been occupied by different persons as tenants ever since. That in the month of December, 1866, she came to Jackson on a visit, when she said to witness that- she had not returned to Jackson to live; that she intended to remain in Alabama for the purpose of educating her children, and would remain there until they were-educated;-she stated that
William Yerger, jr., testified that about the 21st of December, 1866, he met Mrs. Alston in Jackson, who then stated to him that she had not returned to Jackson to live, but was only on a visit, and said nothing of any intention to return to Jackson at any future time.
Joshua Green testified that the defendant, Mrs. Alston, left the city of Jackson on the 14th of May, 1863, for Alabama, taking her entire family with her, and, with the exception of occasional visits to Jackson, she has been absent from this State since that time, and is still in Alabama; heard her often say that she intended returning to Jackson to live, but .never heard her intimate any. time when she would return.
O. Sidlivan testified, on the part of the defendant below, that in'January, 1865, she employed him to paint, varnish, and repair-her furniture, and asked him as to the price of furniture in Jackson, and what he thought it would command in the market. He told her it would not bring its value, and advised her'not to sell it. She then instructed him to fix the furniture, and leave some of it at several designated places, and retain' the balance in his shop for her; that she would use it when she came back to occupy her house.
From this evidence it appears that the plaintiff in error had not relinquished the idea of returning, at some indefinite future period, to her house in Jackson to live, which she seems to have regarded as her domicil; and it is equally clear that she had a residence in the State of Alabama, of an indefinite duration, for the purpose of educating her children, with the animo revertendi, the intention of returning,’ when that purpose was effected. - ‘
■ The 0ode, in giving the remedy by attachment, where the party is a non-resident of the State, has furnished, no specific definition of the sense in which it uses this form of' expression. What is really meant by the term non-resident is left in a pain
It is insisted by counsel for the plaintiff in error, that residence and domicil mean the same thing, are convertible terms, and that no person can properly be said to be a nón-resident of this State whose domicil is within it, although he may actually reside for the time being in another State. This is believed to be an incorrect view of the subject, not warranted by the rule of construction as above indicated by the statute. A person may be a non-resident of the State, within the meaning of the statute relative to non-resident debtors, whilst his domicil of succession continues within the State. Actual residence, Avithout regard to the domicil of the debtor, is what is contemplated by the statute. It was intended to give a remedy to creditors Avhose debtors could not be served with process while their domicil continued in the State. Foster v. Brisbin, 19 Wend. 14; Haggart v. Morgan, 1 Selden, 423; Riswick v. Davis, 19 Maryland, 82.
Absence from one’s domicil may be prolonged to such an extent as to justify his being subjected to attachment as a nonresident ; but in such case there must be a settled, fixed abode, an intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence within the meaning of that term. Mere absence from the State, tenrporarily, on business or pleasure, is not Avithin the meaning of the statute. Drake on Attachment, § 57; Mandell v. Peet, Sims, & Co., 18 Ark. 236.
Any person may have his domicil in one place and his residence, for the time being, in another. Domicil and residence are not coirrertible terms. Thus, a citizen of Mississippi may retain his dwelling here, Avitli its furniture undisturbed^ in charge of his neighbor or some friend, for a year or more, while he is educating his children in another, and occupying a hired house there, for that purpose. In such case, it is obAÚous that
Eut this reason, it may be said, would apply equally to the case of a debtor merely travelling abroad. A man, so far as this law is concerned, may travel without apprehension, but the moment he ceases to sustain the character of a traveller, and, for purposes of education or business, takes up a fixed, though temporary abode, he becomes, for the time being, a resident abroad, and, as a consequence, for the time being, in the eye o'f the law, a non-resident of the State, and liable, as such nonresident, to have his property, which he has left behind him, attached for the payment of his debts.
There is nothing unreasonable in this rule. On the contrary, while extending all due indulgence to the love of travel, it shows no more than a proper regard for the claims of domestic justice.
We have thus arrived at the conclusion, that the plaintiff in error, at the time of suing out the attachment, was at least a temporary resident of the State of Alabama, for an indefinite period, and consequently, for the time being, a non-resident of this State, within the intent and meaning of our attachment law, and her property within the State was therefore liable to the attachment.
The judgment will be affirmed.
A petition for a re-argument was presented, and a re-argument refused.
