Dorus v. Lyon, 101 A. 490

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101 A. 490 | Conn. | 1917

The controlling question is whether Lyon was "without the State," within the meaning of General Statutes, § 1125, from 1892 to 1906, so that the statute of limitations did not run against the plaintiff's cause of action during that period. If it did run, the plea was good.

It seems clear that the finding concludes the point against the plaintiff's contention. The finding is that Lyon was without the State except as therein stated; *57 but the exception nullify the affirmation. In Sage v.Hawley, 16 Conn. 106, we held that the proviso as to absence from the State did not refer to temporary absences, but was intended to preserve the plaintiff's right of action during a period when, by reason of the defendant's absence, it was impossible to commence an action in personam against the defendant; and we said that if the defendant is domiciled or resident within the State, although temporarily absent therefrom, the statutes still provide a way by which a personal action may be commenced against him, in which a judgment may be obtained which will be binding and conclusive between the parties, and therefore in such a case no saving of the right of the plaintiff to commence such an action is necessary.

In this case the defendant was not even absent from the State. He was customarily in Bridgeport three days in the week, and by the exercise of ordinary diligence the creditor could have ascertained that fact, and commenced his action at any time.

The finding that he sometimes voted in Bridgeport, indicates very strongly that Lyon himself regarded Bridgeport as his legal domicil. There is no finding on the point of domicil, but it is expressly found that he had a residence in Bridgeport, and the necessary inference from the other facts found is that he also had a usual place of abode in Bridgeport. A man may be a resident in two or more States at the same time, and the house where a resident of Connecticut habitually spends three days in the week for a period of fourteen years, except when away on trips and vacations, is his usual place of abode for the purpose of serving process upon him.

There is no error.

In this opinion the other judges concurred.