| Ky. Ct. App. | Jan 29, 1907
Opinion of the Court by
Reversing.
By this action appellant sought to recover of appellees in the court below damages in the sum of $3,000 for his alleged false arrest at their hands. At the appearance term, and before the case was called for trial, the court, on appellees’ motion, required of appellant a bond for costs, upon the ground that he was a nonresident of the State. His refusal to give the bond resulted in the dismissal of the action by
Except an affidavit of one of the appellees, containing a mere expression of opinion that appellant was a nonresident, which was filed as a basis for the rule to require the bond for costs, the only evidence heard on that subject was furnished by appellant, who was introduced as a witness by appellees'. His testimony was as follows: “My name is J. H. Erwin. I am the plaintiff in this action. I am now working for wages at lumber work in Union City, Tenn. I went there from Graves county, Ky., about three months ago, because I had no employment here and work was so slow. I have lived in Graves county, Ky., for four years, and am a resident of that State and county. It is my intention to return, and has been, just as soon as work opens up here. I vote and pay my taxes in Kentucky, and have no intention of leaving Kentucky permanently. I own no property. My family is staying with me near Union City, Tenn.; am keeping house there. I have no property, real or personal, in Kentucky. My father-in-law also moved to Tennessee, near where I am living.”
Civil Code Prae., sec. 616, requires a nonresident of this State, before commencing an action in the State, to “file in the clerk’s office a bond of sufficient surety, to be approved by the clerk, for the payment of all costs which may accrue in the court in which it may be brought, or any other to which it may be ■carried.” Section 617 provides: “An action in which a bond for costs is not given, as is required by section 616, shall be dismissed on the motion of the defendant at any time before judgment, unless in a reasonable time, to be allowed by the court, after the motion is made therefor, such bond be filed. ’ ’ Is the
It fully appears from the uncontradioted testimony of appellant that his actual residence in Tennessee was temporary, and had continued but three months; that he had previously and continuously lived in Graves county, Ky., for about four years, there voted, and paid taxes; that his only, purpose in going to Tennessee was to get temporary employment, which was not then to be had at his home in Kentucky; that he left this State with the intention of retaining his citizenship therein, and of returning as soon as he could procure work at home, and such is still his purpose. The fact that his family also went to T'ennes•see, and have there remained with him, does not of itself prove an abandonment of his home or loss of citizenship in this State, but does conduce to prove his care of and affection for those who are dependent upon him, as he can better minister to their comfort and welfare under such circumstances than if he were separated from them. In our opinion the evidence does not prove appellant to be a nonresident, within the meaning of the section supra. In its broadest sense the term “nonresident” means one who resides out of the State; but the mere fact of being- out of die State, or not domiciled therein, does not constitute one a nonresident. A temporary absence from or residence out of the State, even for an indefinite period, will not constitute the party a nonresident, if at the time of departure from the State and during the absence therefrom there is an intention of returning to it; and especially is this true if he continues to fulfil the duties of citizenship by voting, paying taxes, etc., in the state from which
We are aware that some of the law writers and many of the courts have drawn a distinction between a legal and actual residence. Obviously, a person cannot have a legal residence in two states at the same time; but he may have a legal residence in one state and at the same time an actual residence in another. The actual residence in the one state will not destroy the legal residence in the other, if it be but temporary and the intention to return to the state of the legal residence within a definite or reasonable time is retained; and such intention may be shown by the declarations and acts of the party. In our opinion the term “nonresident,” as used in sections 616-617, Civil Code Prac., refers to and means a person whose legal residence is not in Kentucky, but another state, and that it does not include appellant, whose legal residence is in Kentucky, though he is temporarily an actual resident of Tennessee.
Our attention has been called by counsel for appellees to the case of Tipton v. Tipton, 87 Ky., 243" court="Ky. Ct. App." date_filed="1888-05-12" href="https://app.midpage.ai/document/tipton-v-tipton-7132026?utm_source=webapp" opinion_id="7132026">87 Ky., 243, 10 Ky. Law Rep., 252, 8 S.W., 440" court="Ky. Ct. App." date_filed="1888-05-12" href="https://app.midpage.ai/document/tipton-v-tipton-7132026?utm_source=webapp" opinion_id="7132026">8 S. W., 440, which, it is insisted, sustains the judgment appealed from. The case referred to was an action for divorce. Section 423, Civil Code Prac., provides: “The plaintiff, to
It follows, from the foregoing expression of our views, that the lower court erred in requiring of appellant a bond for costs, and also in dismissing the action because of his failure to give it. Wherefore the judgment is reversed, and cause remanded for further proceedings consistent with the opinion.