51 Wash. 412 | Wash. | 1909
— This action was brought on a judgment recovered in the superior court of the state of Washington for Garfield county on the 6th day of October, 1892, against
.The only question raised by the assignments of error in this case is, whether the appellant was a resident of Idaho, or more strictly speaking, a nonresident of this state, within the meaning of Bal. Code, §4808 (P. C. §292), which provides as follows:
“If the cause of action shall accrue against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited after the return of such person into the state, or after the time of such concealment; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action.”
The assignment that the court erred in not granting a nonsuit asked for by the appellant depends upon the same fact. The appellant not standing upon her motion, but seeing fit to enter upon her defense, the court will review all the testimony for the purpose of determining the case.
The testimony in this case is meager, but we think it justifies the findings and conclusions of the court. There is really no dispute about the facts. It appears, that the appellant had her abode in Idaho from the 5th day of September, 1897, to the time of the commencement of this action;
“To sustain the contention that these items were not barred, plaintiffs put in evidence a letter of the defendant, stating that during the seven years from April, 1861, to April, 1868, his absences from the city of New York were all temporary, and, though frequent, were for short periods, varying from one day to perhaps forty or fifty days; that there were probably only two or three as long as forty days and not more than one as long as fifty days; that they consisted mainly of brief visits to Washington during the first four years, and visits to Iowa and Wisconsin and the South during the following years; and that he estimated they averaged two months a year.”
Many New York cases are reviewed in this opinion, and they were all decided on a state of facts similar to the case just above cited. For instance, in Wrigley’s Case, 4 Wend. 602, the court said:
“Inhabitancy and residence do not mean precisely the same thing as domicile, when the latter term is applied to personal estate, but they mean a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a mere temporary locality of existence.”
And in Frost v. Brisbin, 19 Wend. 11, 32 Am. Dec. 423, it was said:
“There must be a settled, fixed abode, an intention to remain permanently at least for a time, for business or other*418 purposes, to constitute a residence within the legal meaning of that term.”
In discussing Burroughs v. Bloomer, 5 Denio 532, it was said:
“But mere presence was not tantamount to residence under the statute, nor mere absence equivalent to residence elsewhere. And the occasional absences of a resident of the state continuing to reside therein were not to be deduced in computing the statutory term.”
Other cases to the same effect are cited. .Very different is the case at bar, where there was a permanent employment for years, each employment being for the period of one school year at least, with the evident intention on the part of the appellant to make it permanent if .possible. A permanent abode was provided and occupied as a home, the house which was rented being retained by appellant and the rent paid by her during the brief periods when she was away in the vacation season.
We think the testimony fully sustains the conclusion reached by the court, and the judgment is affirmed.
Mount, Crow, Rudkin, and Fullerton, JJ., concur.
Hadley, C. J., and Chadwick, J., took no part.