11 Conn. 234 | Conn. | 1836
The plaintiff claims title to the premises demanded, by virtue of a judgment and levy of execution upon them, in his favour against the defendant.
Upon the face of the entire record, every thing appears regular, and thus a prima facie title is shewn in the plaintiff. And this title will prevail, unless the defendant has successfully impeached it. The facts upon which the objections to the plaintiff's prima facie title are predicated, appear with precision upon the motion.
1. The defendant insists, that the original writ of attachment, upon which the plaintiff’s judgment and execution were founded, was never legally served, so that in truth the judgment under which he now claims, is not merely erroneous, but void.
Writs of attachment against inhabitants or residents of the state, must be served, if real or personal property is attached, by leaving with the person whose estate is so attached, or at his usual place of abode, if within this state, a true and attested copy of the writ, together with the officer’s return, describing the estate attached. And when a summons is served, it shall be, by the officer’s reading the same in the hearing of the defendant, or leaving an attested copy thereof at the place of the defendant’s abode. Stat. tit. 2. chap. 1 sec. 5.
The most prominent purpose of the law in prescribing the modes of serving civil process, was, to ensure actual notice to
In the present case, it is conceded, that Dalliber, the defendant in the original action, was an inhabitant and resident in this state, when the process was served, and had been, for a long time before; and of course, that he had a place of abode in the state. Where was his usual place of abode, as distinguished from the place of his occasional or temporary sojourning, is the question? Was it in Torrington, at the dwelling-house where he with his family formerly resided, and where his family, with his knowledge and consent, had ever since continued to reside? Or was it in the town of Wethersfield, in the state’s prison, where he was constrained temporarily to remain? Before his imprisonment, his usual place of abode was in Torrington, in the same dwelling-house where the copy of the writ was left in service, where his family dwelt, and to which, as to his home, he returned, upon his enlargement from prison. He had never abandoned this, as his place of residence; he had left it, by constraint; he had acquired no new or other place of residence. The state’s prison was not the place of his abode; it was the place of his punishment; and while there, he was absent from home.
We think it may be said generally, that the place in which a married man’s family resides, with his consent, and where he has voluntarily resided with them, as his home, and which he has never abandoned, may well be considered as the place of his abode, unless such residence has been, and was intended to be, temporary and for transient purposes. And such place of residence or usual abode, is not changed or abandoned, by a constrained removal, as by imprisonment. Such is the law in regard to national domicil; and we think its principles applicable to domestic residence. 2 Domat Pub. Law, tit. 16. Bempde, v. Johnstone, 3 Ves. 198. Story's Conflict of Laws, 46. 1 Kent's Com. 77.
The ground assumed, by the defendant, upon this question, must result in the conclusion, that civil process against prisoners confined in the state’s prison, must always be served upon them personally, within the walls of the prison. If this be so, every officer or indifferent person serving process, must, at all
If the foregoing views of this question be the correct ones, it follows, that the usual place of Dalliber's abode was in Tor-rington, at the same place where the copy of the original writ of attachment was left in service, and of course, the writ was legally served; and there remains no necessity for deciding the question, whether under a different view of the subject, a judgment founded upon that writ, would have been void.
2. But still it is insisted, that if the judgment and execution cannot be impeached, but are valid; yet that no title was acquired, by the levy of the execution, for two reasons.
First, that the officer making the levy, did not allow a reasonable time after demand made, and before the levy, for the defendant to pay and satisfy the execution; having made his levy, immediately after making demand of payment.
Secondly, because no reasonable time was allowed Dalliber to appoint, an appraiser; and therefore, the defendant did not neglect to appoint, as alleged by the officer, in his return.
The officer serving the execution, was bound to conduct reasonably, in view of all the circumstances of the case; and whether a reasonable time was given for either of the purposes claimed, must be determined, by these circumstances.
Dalliber, the defendant, was confined in the state's prison, as a convict. It could not be presumed, that he was in possession of funds wherewith to satisfy the execution. He was beyond the official precincts of the officer, and no person was under legal obligation to repair to him, either for the purpose of making a demand of money or goods, or of procuring the appointment of an appraiser. This denial of privilege, if indeed it was such, was not the result of the officer's neglect, but of the defendant's crime: his complaint should be of himself, and not of another. Under such circumstances, the officer was no more bound to give time, than if Dalliber had absconded from the state, or upon demand, had expressly refused to interfere in the matter. Pendleton v. Button, 3 Conn. Rep. 406.
The judge at the trial was entirely correct in refusing to
New trial not to be granted.