25 Wis. 600 | Wis. | 1870
Lead Opinion
This action was commenced on tfie 27tfi day of July, 1867, by tfie respondent, for tfie purpose of obtaining a divorce from tfie bonds of matrimony. Tfie
The first objection taken to granting the divorce, and one which goes to the very foundation of the proceedings, is, that the evidence in the case shows that the respondent had not been a resident of this state for one year prior to the commencement of’ the suit. Our statute enacts that no divorce shall be granted unless the petitioner or plaintiff shall have resided in this state one year immediately preceding the time of exhibiting the petition or complaint, with certain exceptions which have no reference to, or do not affect, this case. Sec. 12, chap. Ill, R. S. The inquiry which meets us at the outset, then, is, Does the evidence show'that the respondent had resided in this state one year preceding the commencement of the suit 1 And this inquiry must be answered entirely upon the facts stated in the respondent’s own testimony given on the trial. That portion of it bearing upon the question of his residence in this state’ prior to July 27, 1867, is substantial as follows. He says: “I came to Hudson on the 20th day of July, 1866, with the intention of making it my residence from that time; I arranged on that day with Mr. Baker as to purchasing pine land here ; I went away the same day I came ; I came back in the fall - — last of October; in October I arranged to purchase the lots on which is built the hotel; went to Louisville to look after some debts there; was in Louisville a good deal of the time; was in Warren part of the time; prior to coming here in July I had lived in Warren; had so lived seven or eight years ; in Warren I was stopping with my daughter, and had a room there; I take all my things with me when I travel; when I left there I took no more
I have endeavored to quote accurately, and in extenso, all the testimony given by the respondent, either upon the cross or redirect examination, which tends to throw any light upon the question as to when his residence commenced in this state. A residence in the state one year immediately preceding the application is indispensable to found a jurisdiction in the case. Was, then, the
Upon the facts it seems to me this question must be answered in the negative.
If the question were to be decided wholly upon the intention of the respondent, without reference to the fact of actual residence, there would be good ground for holding that he became a resident on the 20th day of July, 1866. But it seems to me it will not do to rest the decision entirely upon the intention and purpose of mind of the respondent to change his residence to this state. The intent and fact of residence must concur. “Residence,” says Webster, “is the act of residing, abiding, or dwelling in a place for some continuance of time.” Another definition given by him is, “the place where one resides.” “Residence,” says Burrill, is “the act or state of being seated or settled in a place; the act, state or habit of dwelling or abiding in a place; the act or state of being a resident, or inhabitant; inhabitancy or habitancy. The place where one resides, habitation; domicil.” 2 Law Die., word “Residence.” Bouvier defines the word “residence” as “the place of one’s domicil.” “ There is a difference,” he adds, “between a man’s residence and his domicil. He may have his domicil in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicil, he may have several residences. A residence is generally transient in its nature; it becomes a domicil when it is taken up animo manendi.” 2 Law Die. This distinction between .domicil'and residence is likewise taken in In re Thompson, 1 Wend. 43; In re Wrigley, 8 id. 134; Frost v. Brisbin, 19 id. 11; Chaine v. Wilson, 8 Abb. Pr. 78 ; Foster v. Fall, 4 Humph. 346. Chancellor Keht says, “that a man can have but one domicil for the purpose of succession. He cannot have more than one domicil1 at the same time, for one and the same purpose; and
Our divorce statute furnishes no particular definition of the language, “the plaintiff shall have resided in this state one year immediately preceding the time of” applying for a divorce. But I can but think it means that the plaintiff shall, in fact and intent, have an established home in the state for the preceding year — a place where he lives and has an abode ; where he would be liable to taxation ; where service of process of court could be had upon him, by copy; and where he has an actual habitation and residence. It seems to me that it could hardly be said, in the event a suit had been commenced against
Dissenting Opinion
dissenting. The court does not find as matter of fact that the plaintiff did not, in July, 1866, select Hudson, in this state, as bis residence, and intend from that time to reside there. He swears positively that he did. Of his competency as a witness upon this point there is no doubt; and although a party might be so contradicted by circumstantial evidence as to warrant a court in disbelieving his statement in regard, to his intention, yet there are no such circumstances presented here. It is true that he went away immediately. But his absence was of no different character or extent than was natural in view of his business; and Ms subsequent conduct in perfecting his arrangements for residence here, and entering upon investment and improvement, fully confirm his direct evidence as to his intent, and show that his absence, after first selecting his new residence, was temporary, and furnishes no ground for assuming his intention to have been at all different from what he states. This being so, I cannot assent to the conclusion of law at which the court has arrived. The legal rule of their decision, as I understand it, is, that although a man may actually be present in this state, and may select a place as a residence, and intend from that time to reside there, yet if he goes away upon business, although intending to return, he cannot be held to be a resident of this state, unless he leaves behind him here such external evidences and indications of residence as would at all times enable the court to find the fact independent of his testimony. I do not think there is any other case that establishes such a rule. On the contrary, the authorities seem to be uniform to the effect that personal presence in a place, coupled with an actual intent to reside there from that time, constitutes .such place a residence. And no mere temporary absence from that residence, so long as the party really regards and considers it his residence, deprives it of that character. In Hulett's Adm'rs v. Hulett, 37 Vt. 581, this subject was very fully considered. The court says: “In
In this case the subsequent facts are entirely satisfactory to give to the plaintiff’s short stay, in July, the “legally permanent character” of a residence, and to show that his absence, immediately succeeding that time, was temporary, and worked no change of such residence.
In Massachusetts, under a statute which required every person to be taxed in the town where he was an inhabitant on the first of May, it was held that a party, who on that day was out of the state journeying to a new residence- in Pennsylvania, to which state he had not yet arrived, was not taxable, being no longer an inhabitant. Golton v. Inhabitants of Longmeadow, 12 Allen, 598.
In Bulkley v. Inhabitants of Williamstown, 3 Gray, 493, the court states the rule as follows: “The general rule, and for practical purposes a fixed rule, is, that a man must have a habitation somewhere. He can have
Putting the doctrine of these two cases together, it would follow that in the first one the court must have regarded the plaintiff as a resident of Pennsylvania on the first of May, although he had not yet arrived there at all, upon the ground that he had abandoned his old residence with the intention of residing there. In the latter case, they expressly say that the personal presence of a man in another state, concurring with the intention to reside there, may fix his domicil there, although he returned for his family.
But our court says, that a man’s personal presence here, concurring with an intention to reside here, does not fix his residence here, unless he establishes such external indications of that intention as would, from the inception of his residence, be continuously sufficient to establish the fact to the satisfaction of a court, independently of his own testimony. I cannot think such a rule would be held in any other action than one.for a divorce; and I'do not feel at liberty, because the action is of that character, to introduce any new elements into the law of residence.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.