Fitzgerald v. Arel

63 Iowa 104 | Iowa | 1884

Adams, J.

Three questions are certified, but, as the determination of one of them will make a final disposition of the case, we deem it sufficient to determine that one. The qnestion is in these words: “Upon the affidavit as to residence, is defendant a resident within, and subject to, the jurisdiction of the justice of the peace before whom the case was brought?”.

The jurisdiction of justices of the peace, when not specially restricted, is co-extensive with their respective counties. Code, § 3507. This provision is qualified by the exception that their jurisdiction “does not embrace suits for the recovery of money against actual residents of any other county.” In determining whether the justice of the peace in the case at bar had jurisdiction, we have to determine whether the defendant was an actual resident of any other county.' He contends that he was an actual resident of Des Moines county. His theory that he was such resident is not based upon the fact that either he or his family was actually living in Des Moines county at that time, (for the affidavit shows that they were living in Palo Alto county,) but upon the fact that they intended, when defendant’s contract should be completed, to return to Des Moines county. Whether the word “resident,” as used in the statute in question, should have precisely the same meaning as in statutes providing for the settlement of paupers, or for the exercise of the right of suffrage, or for taxation, we need not determine. In the statute in question, the word “actual” is used to qualify the word “resident,” and, besides, the manifest object of a statute may often be allowed some influence in its construction.

1. words and phrases: "residence” and "domicile.” 2. JURISDICTION-of justices of the peace: actual residence of defendant: facts constituting. Proceeding, then, with our inquiry, we have to say that it does not necessarily follow that the defendant was an actual resident of Des Moines county because his domicile was in that county. Residence and domicile are not necessarily the same. 2 Kent’s Com., 431, note; Love v. Cherry, 24 Iowa, 204; Cohen v. Daniels, 25, Id., 88. In the latter case, Beck, justice, said: “The distinction between the import of the terms residence and domicile is obvious. The first is used to indicate the place of dwelling, whether permanent or temporary; the second, to denote a fixed, permanent residence to which, when absent, one has the intention of returning.” The distinction here noted is the same as is sometimes made between aotual residence and legal residence or inhabitancy. In Crawford v. Wilson, 4 Barb., 522, the court said: “The actual residence is not always the legal residence or inhabitancy of a man. A foreign minister actually resides, and is personally present, at the court to which he is accredited, but his legal residence or inhabitancy and domicile are in his own country.” See also, in this connection, Shelton v. Tiffin, 6 How., 185, and 2 Parsons on Cont., 578. In our opinion, whenever a man buys or hires a house and sets up house-keeping with his family, with the design of remaining there until he has completed a certain iob of work, he becomes an actual resident of that , . . . . . ... county within the meaning of the statute m question and that, too, notwithstanding his domicile may ^e in another county, to which he intends to return upon the completion of the job. The object of the statute depriving justices of the peace of jurisdiction over actual non-residents of the county, was, doubtless, ■to secure persons against annoyance from suits where they could not conveniently remain to defend. But this reason can not be presumed to apply, where a person is sued in a county in which he has set up house-keeping with his family.

"We are aware that it was said in Love v. Cherry, above cited, that the plaintiff might have two residences at the same time, a residence in Iowa and a residence in Texas, and it was held that she might be sued before a justice of the peace in the county of her residence in Iowa, while actually in Texas. It has been frequently said that a person may have more than one residence, and we have seen that a person may have an actual residence in one place and a. legal residence in another. Crawford v. Wilson, above cited. But it is certain that, if, in Love v. Cherry, Mrs. Love had an actual residence in Texas, she could not be sued before a justice of the peace in Iowa, because that would have been in express contravention of the statute. If Mrs. Love, then, was supposed to have had a residence in Texas, it could not have been supposed to have been an actual residence within the meaning of the statute. The fact appears to be that Mrs. Love had purchased a dwelling house at the place of her Iowa residence, to-wit, Mount Pleasant, and had moved into i t with her daughter and daughter’s famity, with whom she lived. She went to Texas on business, leaving behind her her furniture, a part of her clothing, and the family of which she had become a member, and intending to return. So far, it would seem to be clear that her actual residence remained at Mount Pleasant. The only evidence tending to show otherwise was her testimony that, while in Texas, she took out letters of administration upon an estate, and, in order to do so, she was obliged to “take up her residence there.” But her design of returning docs not seem to have been abandoned. That case differed from the one at bar in this, that the family to which Mrs Love had attached herself as a member, and her furniture, and ]iart of her clothing, remained behind her at her Iowa residence. Service of original notice in the ease was made upon her by a service upon her daughter, as a member of her family, being the family to which she attached herself at Mt. Pleasant. In the case at bar, the defendant took his family with him. We think that thin case is not controlled by Love v. Cherry, and that the court below erred in holding that the justice of the peace did not have jurisdiction.

Reversed.

SUPPLEMENTAL OPINION.

The appellee, in a petition for rehearing, calls our attention to Bradley v. Fraser, 54 Iowa, 289, and insists that, while the facts in that case are not precisely like the facts in this, the difference is not such as to justify a difference in ruling.

The specific question to be determined is, as to whether the defendant was an actual resident of Des Moines county or of Palo Alto county. It is not easy, perhaps, to lay clown a rule by which it can be determined in all cases whether a person is an actual resident of a given county, when it is conceded that he has a legal residence in another county. Rut, if a person who, having a legal residence in one county, goes into another, and there hires a house, and sets up house-keeping therein with his family, with the intention of remaining there until he has completed a certain job of work, does not become an actual resident of the latter county, it would be difficult to suppose a case of actual residence in one county, where the legal residence is in another. The appellee does not contend that we should put a construction upon the statute which would eliminate the word “actual,” and make a person suable before a justice of the peace only in the county where he can vote; yet his reasoning would lead to such result; and it is difficult to see how we could affirm this case without substantially so holding. Rut we must allow force to be given to every word of a statute, so far as it can be done consistently; and it not only can be done in this case, but, as we have already seen, there is a manifest reason for the use of the word “actual.” The case of Bradley v. Fraser differs from the case at bar in this, that Each, whose residence Avas drawn in issue, was not keeping house, but boarding at a hotel. It is true that he had been keeping house, but he had given it up. Whether he was preparing to keep house or not does not appear, and it is not material. Any one can see that that case is distinguishable from this. His ■ arrangement for remaining where he Avas sojourning was of a more temporary character. In the opinion in that case, it is true, some stress was placed upon the fact that Each was a voter in Buchanan county. But, while that was not of itself a controlling circumstance, it was entitled to be considered. Bach’s legal residence being established in the neighboring county of Buchanan, his actual residence could not be held to be in Clayton county, Avithout such showing of facts as would properly lead to the conclusion that his actual and lega! residence differed. The fact that he was sojourning at a hotel, though.he had his family with him, did not lead us to such conclusion. We do not say that a hotel boarder might not, where boarding, have an actual residence as distinguished from a legal residence. His engagements, and the distance from his place of legal residence, might be such as to clothe his sojourn with a considerable degree of permanence. Every case must be determined upon its own facts, and with due regard to the object which the statute was designed to accomplish. The petition for a rehearing must be overruled.