58 W. Va. 140 | W. Va. | 1905
Minnie Brown complains of a decree of the circuit court of Wood county, dissolving an injunction by which she attempted to prevent the sale of certain personal property claimed by her as exempt under the provisions of sections 23 and 24 of chapter 41 of the Code, and dismissing her bill.
The defense relied upon mainly is the alleged non-residence of the plaintiff at the time she presented her claim of exemption. She had occupied as tenant a certain house in the city of Parkersburg, from which, on the day on which the actions were commenced and her property seized, she had removed all her property and effects, including her wearing apparel not in actual use, to the wharfboat at said city and had them consigned to herself at Marietta in the state of Ohio and had vacated the house in which, she had resided. She testifies that she staid at the Dewitt hotel in Parkersburg on the night of the day on which her property was sent to the wharfboat and levied upon, and later, went to the residence of a Mrs. Core, in Parkersburg, with whom she staid for some time, and then went to another place in said city. She denies that she ever had any intention of leaving the city, and explains the shipment of her property by saying she had rented it to certain persons in Marietta. In addition to the fact of the removal of plaintiff’s property and the evidence of intent on her part to take up her residence at Marietta, the defendant’s rely upon testimony showing her
If it be conceded that the evidence justified the finding bjr the court of a fixed intention on the part of the appellant to remove from Parkersburg to Marietta, and of preparation by her to do so, we are confronted with the question, whether there does not yet remain to be supplied one essential element of change of residence, namely, actual commencement of removal, not of the property, but of the person, personal departure from the old place of residence in the State for the new outside of it. Burt v. Allen, 48 W. Va. 154, decides that within the meaning of attachment laws a person becomes a non-resident the moment he begins the removal of his person from the place of his residence, with intent to acquire a residence in another state, even before he gets outside the State. To the same effect are Moore v. Holt, 10 Grat. 289, and Clark v. Ward, 12 Grat. 440. According to many authorities, such commencement of removal, coupled with an intent to abandon the state, falls short of the requisites of non-residence. Shinn on Attach, section 96 says, it is necessary that the defendant acquire a residence and place of abode outside of the state. Drake on Attach, section 64 says, a mere purpose to change residence, evidencéd by acts of the removal of the party’s property, will not make him a nonresident of the state from which he purposes to depart until he shall have begun at least the removal of his person. Wade on Attach, section 78, accords with the proposition last above stated. No case has been found which propounds a doctrine more rigid and illiberal toward the defendant. Hence, it may be safely said that by the great weight of authority nothing short of such act of removal, accompanied by intent to abandon the state, will render the party amenable to an attachment on the ground of non-residence. This proposition seems to be in accord with the general principles of the law
Burt v. Allen, cited, further declares that the elements of non-residence in the law of attachment and the elements of non-residence within the meaning of the statutes conferring a right to exempt personal property from forced sales are the same. This position seems to be supported by both principle and reason. Surely, the law is not less favorable to the claimant of a constitutional right of a character so high that the statutes, providing for its vindication, are, by the courts of almost all the states liberally construed, 12 Am. & Eng. Enc. Law, 75, than to the right of a debtor to defeat an attachment. In the former case the law impresses upon the property a status, immunity from forced sale, and withdraws it from the reach of the creditor; in the latter, the party is only given the benefit of a strict construction of remedial statutes, designed to give the creditor a means of obtaining from him what he is entitled to have, satisfaction of his debt out of the property. In both instances the law is liberal to the debtor. Hence, it would seem that in both cases the same rules for determining the question of non-residence ought to govern.
What evidence in the case supplies this element of personal removal? Nobody testifies to any departure by the appellant from Parkersburg. A witness states that she came from Max-ietta to Williamstown to attend the trial of an action brought by her against the constable and that, on that occa
On the question of residence, the principle of rea judicata is relied upon. In the action by the appellant against the constable, an affidavit of her non-residence was filed and a demand made for security for costs. This motion was resisted and evidence was heard upon it and the justice, believing non-residence to have been established, required security to be given, and, in default thereof, dismissed the action. This was not a hearing on the merits, but one upon a mere collateral motion. “A judgment not based upon the merits is not final and conclusive in the sense that a plea of res.judi-cata may be founded on it.” 21 Am. & Eng. Enc. Law 266. A nonsuit is not res judicata. Id. 271. The dismissal in equity for want of jurisdiction or any cause precluding inquiry into the merits is not res judicata. Id. 271.
But one other proposition -remains to. be disposed of, namely, that the claim of exemption is insufficient, which contention is based upon two grounds, one of which is predicated upon the following language in the affidavit: “That she is entitled to have and claims all the above listed property claimed by her as husband and parent exempt from execution or other process in the above cause. ” The point made
The conclusion resulting from this examination of the record and authorities is that the circuit court erred in dissolving the injunction and dismissing the bill, and that the decree must be reversed with costs in this Court to the appellant, the bill reinstated and a decree entered perpetuating the injunction and requiring the appellees to pay to the appellant her costs in the circuit court.
Reversed a/nd Injimetion Perpetuated.