256 Pa. 257 | Pa. | 1917
Opinion by
This action was instituted by David Hunter, Jr., as receiver of the Land Trust Company, against J. D. Bremer, to recover the balance due upon two promissory notes signed by the latter and held by the former. The first of these, dated December 22, 1905, payable upon demand, was called about three months thereafter, and the second, dated June 25, 1907, fell due'on October 25, 1907. The present suit was not commenced until July 22,1914, when both obligations were more than six years overdue.
The defendant interposed the bar of the statute of limitations ;. to which the other side replied that, on the facts in this case, the Act of May 22, 1895, P. L. 112, forbade him the benefits of this defense. The act in question provides: “In all civil suits.......in which the cause of action shall have arisen within this state the defendant or defendants......, win shall have become nonresident of the state after said cause of action shall have arisen, shall not have the benefit of any statute of this state for the limitations of actions during the period of such residence without the state.”
The issues involved, as to the residence of the defendant at the time the cause of action arose and his subsequent nonresidence, were submitted to the jury and found in favor of the plaintiff; a verdict Avas rendered accordingly, upon which judgment was entered, and the defendant has appealed.
The defendant claimed that he was not a resident of this State when the notes in suit were executed or at the time default was made thereon; that his permanent resi
When upon the stand, the defendant admitted that, from 1902 to 1906, he was secretary of a fire insurance company, with headquarters in Pittsburgh, and that he had a half interest in another like business in the same place; that afterwards he was special agent for a third insurance concern, which also necessitated his presence in that city; and that, when in Pittsburgh, he had his living quarters at a hotel or in a boarding house, where he “rented a room” and kept sufficient personal articles to meet his requirements. On cross-examination, his attention was called to certain testimony given by him, July, 1911, in an extradition proceeding in the Quarter Sessions Court of Allegheny County, which involved the question of his residence, wherein he made a declaration susceptible of the construction that he had been a resident of Pennsylvania for about 22 years; this in contradiction of his allegation at bar that in 1905 and 1907, when the notes in suit grew due, he was a nonresident of Pennsylvania. Again, the defendant was confronted with certain testimony given by him in a legal proceeding, in 1913, when he said that he was then resident in the State of New York; this in contradiction of his allegation at bar that he had been a resident of Clarion County, Pennsylvania, since 1910. In addition, the plaintiff offered as a witness one who was an assistant district attorney of Allegheny County at the time of the extradition against the defendant; he testified that those proceedings involved the question as to whether Mr.
The testimony in the case, both pro and con, was fairly reviewed by the trial judge, who, in submitting it to the jury, said: “You observe the language of this statute ......[Act of 1895, supra]......It does not use the word ‘citizen,’ or even the word ‘domicile,’ but......‘resident.’ If the statute had said that a man’s domicile must have been changed, or his place of citizenship changed, the meaning would be different from what it is, because there is a distinction between residence and domicile. A man’s domicile is where he has his residence, with an intention of remaining there. Residence does not necessarily involve the idea of an intention of remaining there at that place where his residence is. Residence means where a man abides, not merely temporarily like a traveling man coming into Pittsburgh and staying a day, a week, or even a month, or something of that kind, but it is where he resides. He may not have á domicile where he resides, where he would have the right to- vote, for example ; but as I say to you, it means more than a mere boarder, roomer or something like that. You have the testimony as to what took place with reference to the defendant being in Pittsburgh at the time these notes were made. He was here, he had a place where he went from day to day, either at a hotel or boarding house....., and he was the secretary of this insurance company, and he did business in Pittsburgh. He was part owner of an insurance agency here in this city. If you......are satisfied by the weight of the evidence that the defendant was, at the time of the making of these obligations,. a resident of the City of Pittsburgh.......then the plaintiff will have established the first thing it must, in order to avail itself of the provisions of this statute. If, however, you find he was not, if you find he was at
The instructions just quoted are complained of in the defendant’s second assignment of error; but we see only one statement therein which is open to criticism; that is where the trial judge said, “Residence does not necessarily involve the idea of an intention of remaining there at that place where his residence is.” If the word “permanently” had been used immediately before “remaining,” the instructions would have been strictly correct. When, however, we take the particular instruction under discussion with its context, it is perfectly clear the trial judge meant that, to constitute residence, an intention permanently to remain at the place in question was not necessarily involved; and the jury must have so understood. With this matter cleared up, as just explained, the instructions are beyond criticism.
Of course, there are many cases dealing with residence and domicile; but in view of the recent consideration given the subject by this court in Raymond v. Leishman, 243 Pa. 64, 68, 70, 71, a citation of that authority is enough. There we passed upon the Foreign Attachment Act of June 13,1836, P. L. 568, as amended by the Act of March 30,1905, P. L. 76, which provides that such a writ may be issued against the real or personal estate of any person “not residing within this Commonwealth”;
In the Leishman case (supra), we hold that, considering the evident purpose of the legislation then before us,' when a person was absent from this State, whether or not he had acquired a domicile in another place, if his absence wras so protracted that he could not be reached by the ordinary process of our courts, he was not residing in this Commonwealth within the meaning of the statute; ,in other words, that actual residence in Pennsylvania so that one might be served with process, at any time, generally speaking, was the kind contemplated, and a contrary condition of affairs constituted nonresidence. Moreover, we there suggest that (p. 71), “in determining whether a debtor is within the provisions of the statute, the......courts must necessarily be guided
In considering the present statute (Act of 1895, supra), in Bates v. Collum, 177 Pa. 633, 637, Ave said, “It applies to all civil suits......in Avhich the.cause of action shall have arisen Avithin this State (Shaffer’s Est., 228 Pa. 36, 40), and it affects all defendants Avho shall have become nonresidents after said cause "of action shall have arisen”; meaning, necessarily, defendants Avho had a residence at the time the cause of action arose, else they could not “become” nonresidents. It is plain that the residence intended by this act is of the same character as that contemplated by the statute dealt with in the Leishman case; in other words, the legislative purpose was to provide that, when a resident of Pennsylvania incurs legal obligations within the Commonwealth, if he subsequently leaves this jurisdiction and becomes nonresident to such an extent that he cannot be reached by the ordinary process of a Pennsylvania court, while so nonresident, he is not entitled to the benefit of our statutes of limitation. In short, the Act of 1895, supra, contemplates simply a residence of such permanency that the person in question may be found here and served with ordinary legal process, at any time, generally speaking. The existence of such a residence constitutes one a resident within the meaning of the act, and, on the other hand, its absence makes him a nonresident. For an interesting discussion of a similar statute, upon which a like construction was placed, see Johnson v. Smith, 43 Mo. 499, 501.
Whether or not the present defendant, at the time the cause of action arose, had a residence in Pennsylvania of the character indicated, and, if so, whether or not he
The third, fourth and fifth specifications of error complain of the refusal to grant a new trial, so as to let in certain' alleged after-discovered evidence. In disposing-of these assignments, the court below very properly said: “The defendant has taken the depositions of several witnesses upon the subject of his residence in Pennsylvania, which he contends is after-discovered evidence..... .We have considered this testimony......; the most important part of it relates to what the defendant himself stated to the witnesses. True, many of the statements were made under circumstances when it was not likely he had any purpose of preparing for the contingency which arose at this trial. Still they were but his declarations and, being in his own favor, they could not be of as high evidential value as his testimony given to the jury. In other words, admitting that the testimony contained in these depositions is after-discovered evidence, yet it is but cumulative, and so we cannot say the verdict would probably have been different had the same been submitted. But there is another consideration. It will
The first assignment of error complains that the trial judge erred in sustaining an objection to a question asked the defendant by his counsel on direct examination, and in striking out the answer thereto-, as follows : “Did you ever leave New York City with the intention of seeking another place of abode or residence,
. Tbe sixth and last assignment complains of tbe judgment entered on tbe verdict; this and tbe others previously considered are all overruled.
Tbe judgment is affirmed.