Brown v. Boulden

18 Tex. 431 | Tex. | 1857

Wheeler, J.

It, not unfrequently, is a question of considerable nicety and difficulty, to determine in which of two places a man’s domicil really is. The Statute also uses the word “inhabitant.” An inhabitant and resident mean the same thing. (Burrill, L. D. tit. Inhabitant ; Hart. Dig. Art. 667.) And the word “ domicil ” is evidently used in the Statute in the sense of residence. But there may be a difference between a man’s residence and his domicil. He may have his domicil in one place, and still may have a residence in another ; for although a man, for most purposes, can be said to have but one domicil, he may have several residences. A residence is generally transient in its nature. It becomes a domicil, when it is taken up animo majiendi. (Bouv. Law Dic. tit. Residence.)

It was the manifest intention of the Statute, to secure to every inhabitant of the State, the right of being sued in the county of his residence. This right can not be denied him. But then it depends upon the fact of his having a known residence in some particular county ; for if he is so unsettled as to his residence, as to come within the description of a “ transient person,” he may be sued in whatever county he may be found. (Hart. Dig. Art. 667.) We think, therefore, that to enable the defendant to claim this right, he should be able to point to his residence, by facts so certain and notorious as to enable the plaintiff, by the use of ordinary diligence, certainly to know where to bring his suit. The fact of residence in a particular county ought not to be so uncertain and equivocal, nor ought the Statute to be so strictly construed, as that the plaintiff shall be compelled, in a case rendered doubtful and uncertain by'the conduct of the defendant, to decide rightly at his peril. Too great strictness of construction applied to a case like the present, might have the effect to defeat the suit in both counties, and place the plaintiff in the condition of the unfortunate suitor, who was refused admittance into both the Court of Law and Chancery, because each thought the other the only proper forum to afford redress ; or the plaintiff who was denied redress for an acknowledged injury, because, when he sued in case, the Court thought he ought to have brought trespass; and when he brought trespass, the Court thought his only remedy was case. Cases of this kind have often been instanced to illustrate the absurdity of maintaining the exclusive jurisdiction of Courts of Law and Equity, and the distinctions of forms of action, which our law rejects. But if the Statute in question is to be so strictly construed as to endanger the defeat of the plaintiff’s action in a case like the present, it might be justly chargeable with a similar abuse. It ought not to receive a construction which will pervert its object. If a defendant has a known residence, he must be sued in the county of his residence. But if he is in the act of removing from one county to another, and his affairs are in such a state, that it can not be certainly known in which county his residence in fact is, we think it may be held, consistently with the legislative intention, that the suit may be brought in either county. At all events, where, as in this case, he has had his residence in one county for a considerable time anterior to the bringing of the suit, that, for the purposes of the suit, ought to be held to be the place of his residence, until he has effected an actual and complete change of residence from that to another county ; not only by going to prepare a home for his family in the latter county, but by actually removing his family and principal effects from his former to his new home. The charge of the Court made the fact of the defendant's having gone to Gonzales county to prepare, and being engaged there in preparing a home for his family, effect a change of his residence, or domicil, to that county. This, we think, was error. To effect such change of residence, as to constitute the latter county his domicil, within the spirit and intention of the Statute, he must have actually removed and acquired a home, and residence in that county in fact, as well as in intention. The defendant manifestly had not effected an actual and complete change of residence at the time of instituting the suit. He had not removed his family and effects ; nor does it appear that he had completed his preparations for such removal. We are of opinion, therefore, that the evidence did not warrant the verdict; and but for the error in the charge the decision mast have been different.

The judgment is therefore reversed and the cause remanded for further proceedings.

Reversed and remanded.