Culhane Adjustment Co. v. Farrand

147 N.W. 271 | S.D. | 1914

McCOY, J.

[1] This is an appeal -from an order vacating an attachment. It appears that -the respondent, prior to the 27th day of July, 1913, was engaged in the restaurant business at Brook-ings, and on said date sold and disposed of -his restaurant busin-es-s, under an agreement not to engage in such business in Brookings for the period of one year; that on the 6th day of September, 1913, respondent broke up housekeeping in Brookings, rented 'his residence for the period--of one year, stored his household goods in a room reserved in his residence, and removed with his family to Decorah, la., where he purchased a restaurant business and thereafter conducted such business and assumed a lease of the premises in which the same was conducted; that respondent rented a flat in the city of Decorah in which he resided with his family; that thereafter on the 23rd day of September, 1913, appellant caused a warrant of attachment to be issued and levied upon the property of respondent found within the state, upon the ground that respondent was then a nonresident of this state. Respondent moved to vacate such attachment upon the ground that he had not ceased to be a resident of this state, but was in Decorah only temporarily; that he intended to return to this state after operating said restaurant in Decorah for the period of four months; and that it never was his intention -to remove permanently from this state. We are of the opinion -that the attachment should not have been vacated, — that for the purposes of such attachment respondent was a non-resident of -this state within the meaning of the attachment laws. When construing statutes relating to attachment proceedings against non-residents, a clear distinction has been recognized between actual residence and legal residence, the latter having been generally, deemed the domicile, and not the residence contemplated. Lawson v. Adlard, 46 Minn. 243, 48 N. W. 1019; Hanson v. Graham, 82 Cal. 631, 23 Pac. 56, 7 L. R. A. 127. It seems to be ‘generally held that a debtor cannot preserve a residence in the state, so‘ as to' defeat attachment proceedings, by virtue of a general intention to return, when he in fact resides in another state. This rule does not apply as to one on a mere- transient journey for business or pleasure; but where one has a settled abode for the time being in another state for business -purposes we are of the opinion that he should be treated as a non-resident of this state, within the meaning of the attachment law.

Respondent had no dwelling place within this state, where process could be left in the presence of one or more of the members of his family, nor a place of abode in the family of another where process could be left, as provided in section no Code Civ. Pr. This seems to be a matter properly -to be taken into consideration when considering who is a non-resident within the meaning of the -attachment laws. Pech. Mfg. Co. v. Groves, 6 S. D. 504; 62 N. W. 109. Hanson v. Graham, supra. Lawson v. Adlard, supra. Webb v. Wheeler, (Neb.) 112 N. W. 369. Cousins v. Alworth, 49 Minn. 505, 47 N. W. 169; 10 L. R. A. 504 and note. Monroe v. Williams, 37 S. C. 81, 16 S. E. 533; 19 L. R. A. 665 and note.

[2] It is claimed by respondent that the attached property is exempt from levy under execution. We do- not decide that question as it is not one -that properly arises upon a motion to dissolve an attachment. Pech. Mfg. Co. v. Groves, 6 S. D. 504, 62 N. W. 109. We do not decide that residence under exemption proceedings is measured by the same rule as in attachment proceedings.

The order appealed from is reversed.