Hart v. Horn

4 Kan. 232 | Kan. | 1867

By the Court,

Bailey, J.

This cause, which comes before us on petition in error from the district court of the county of Atchison, was brought in that court by the plaintiff in error, to recover the amount of the several judgments rendered against defendant in error, who was also defendant in the court below, in Davis county, in the State of Iowa.

The several matters set up by the defendant, by way of answer, were all waived, on the trial, except the two-years statute of limitations of Feb. 10, 1859.

The case was tried without the intervention of a jury, and the court found the following facts, viz: That defendant, Horn, and family, resided in the State of Iowa, until A. D. 1863; that at that time he sold his homestead there, boxed up his furniture and started his family to Kansas, with the intention of taking up Ms residence in -said State of Kansas ; that the family took trunks and wearing apparel with them, but that Ms household furniture, boxed up, was left in Iowa; that the defendant was, at that time, in the United States military service ; that his family came direct to Kansas, where defendant had relatives, and-boarded with defendant’s father-in-law, until September, 1863 ; that defendant did not come with his family, and first came to Kansas in September, 1863, but did not come with the intention of taking Ms family away — when he x-emained here some two or three weeks, and then took his family back to Iowa, with their clothes axxd personal effects ; that they remained there till March, A. D. 1864; 'that Horn remained in the military service and in the State of Iowa, until March, A. D. 1864, when his resignation was accepted, and he returned to Kansas with his family, and has remained - here ever since ; that soon after Horn went back to Iowa, in September, 1863, he shipped his furniture to Kansas, and that it remained here, unopened and in store, until after he and family came back in March, 1864; that when Horn came here (Atchison, Kansas) in 1863, he negotiated for a. house, but did not conclude a. bargain, and after-wards the same was not consummated; that this suit was instituted in the court below on the 22d day of January, A. D. 1866.

On these facts, which are agreed upon by both parties to be substantially correct, the court below found the following conclusions of law, viz:

1. That said Horn, the defendant, had a legal residence in Kansas from the-day of June, A. D. 1863, when his family first arrived here, and that the statutes of limitation of this state ran in his favor from that date, and continued to run thereafter.

2. That the statutes of limitation of the State of Kansas commenced to run in this cause from the date of the original judgments, and the day when they were rendered in the State of Iowa, and that said causes of action were therefore barred by said statutes, prior to the institution of this suit.

To which conclusions of law upon the facts, as found by the court, and as appearing in the evidence, the plaintiff, by his counsel, excepted.

It is agreed that the only defense to the plaintiff’s cause of action is the two-years limitation, provided in the amendatory act, approved February 10, 1859, and this was, by the court below, held sufficient.

In arriving at that conclusion, the court held, first, that the Kansas statute commenced running against the Iowa judgments the day they were rendered in Iowa; and, second, that the defendant, Horn, must be deemed to have had his legal residence in Kansas from the time his family first came here in June, 1863.

With regard to the first of these propositions, as to the time when our statutes of limitation begin to run against a cause of action in a case of this kind, this court expressed its opinion, fully and clearly, in the case of Bonifant v. Doniphan (3 Kas., 26); and as we remain entirely satisfied with the reasoning in that case, it must be considered conclusive and final; We held, for the reason there given, that the statute of February 10, 1859, did not begin to run against.the plaintiff’s demand, until the defendant established his legal residence or domicile in Kansas.

The question as to what constitutes a domicile or legal residence, we are well aware is not free from difficulties, as is evident from the fact that writers on jurisprudence have never yet been able to agree upon any precise definition of the word “domicile” which meets with, general acceptance.

The definition given by Yattel is confessedly imperfect, while' Bynkershoek declined even to attempt a definition. It is certainly not our intention to hazard a definition when such great masters have failed, and in using the word we shall use it merely as synonymous with the terms “legal residence,” or “home.”

It is apparent to the casual reader of the reported cases in which the question of domicile has received judicial consideration, that the animus or intent of-the party whose domicile was in question, was deemed to have great weight in the determinations arrived at; and we apprehend that such was the fact in regard to the case now under consideration.

The court below found, as a conclusion of law from the admitted facts, that the defendant, Horn, had a legal residence in Kansas, from the — day of June, A. D.-1863, when his family first arrived here. Having sold his homestead in Iowa, boxed up his household furniture, and sent Ms family to Kansas, with the intent of making Kansas his future home, the will is taken for the deed, and the arrival of the wife and children in Kansas with trunks containing personal clothing only, while the husband and household goods remained at or near the old home in Iowa, is held by the court below to effect the change of domicile.

But we find it laid down in all the authorities that an original domicile, whether of birth or otherwise, if once fixed, “clings closely,” and we conceive that it can never be changed by the mere intent of the party. The act must accompany and verify the intent. As the homely proverb asserts that “actions speak louder than words,” actions must corroborate, and confirm the words. “The fact and' the intent must concur.”

Had the defendant accompanied his wife and children to Kansas, and remained there, though for ever so short a time, if long enough to establish them in a new home, even though such new home had been a boarding place in the house of relatives, then indeed the intent might have been effectual in giving character and significance to the act.

But we cannot think that the intent of the husband to follow his family to Kansas at some future time had the effect of giving him a legal residence in this state, months before he had set foot upon her soil. Intents and purposes are subject to change, and are seldom to be taken as the equivalent of substantial deeds.

We must conclude, therefore, that the defendant did not acquire a legal residence in Kansas in June, 1863.

Did his coming to Kansas in September of that year give Mm such residence? He remained but a short time — left the household goods still boxed up in Iowa, and after stopping a few days, and making somé negotiations for the purchase of a house, left for the former home, taking his family and their effects away with him.

If at that time the plaintiff, using diligence to collect his debt, had arrived at Atchison, and consulted counsel as to the legality of a service made upon the defendant, by leaving a summons at the house where the wife and children had boarded, would any attorney have had the hardihood to advise him that such service would be valid %

From a careful consideration of the premises, we are of opinion that no facts are - shown to have existed in this case which could, be deemed sufficient to charge the plaintiff with notice that his creditor had established a domicile in Kansas at any time prior to March A. I). 1864, and as two years from that time had not elapsed when the action was commenced, and service was duly made upon the defendant, the judgment of the court below must be reversed.

All the justices concurring.