In re Garneau

127 F. 677 | 7th Cir. | 1904

JENKINS, Circuit Judge

(after stating the facts as above). By the terms of the bankruptcy act (Act July 1, 1898, c. 541, § 2, 30 Stat. 545, 346 [U. S. Comp. St. 1901, p. 3421]), the courts of bankruptcy are invested with jurisdiction to adjudge persons bankrupt “who have had their principal place of business, resided or had their domicile within their respective territorial jurisdictions for the preceding six months or the greater portion thereof.” There is, of course, a legal distinction between “domicile” and “residence,” although the terms are generally used as synonymous, the distinction depending upon the connection in which and the purpose for which the terms are used. “Domicile” is the place where one has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning, and where he exercises his political rights. There must exist in combination the fact of residence and the animus manendi. “Residence” indicates permanency of occupation as distinguished from temporary occupation, but does not include so much as “domicile,” which requires an intention- continued with residence. 2 Kent, 376. Residence has been defined to be a place where a person’s habitation is fixed without any present intention of removing therefrom. It is lost by leaving the place where one has acquired a permanent home and removing to another place animo non revertendi, and is gained by remaining in such new place animo manendi. Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533. In Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434, the word is thus defined:

“It does not mean * * * one’s permanent place of abode where he intends to live all liis days, or for an indefinite or unlimited time; nor does it mean one’s residence for a temporary purpose, with the intention of returning to his former residence when that purpose shall have been accomplished, but means, as wo understand it, one’s actual home, in the sense of having no other home, whether he intends to reside there permanently or for a definite or indefinite length of time.”

The term is an elastic one, and difficult of precise definition. The sense in which it should be used is controlled by reference to the object. Its meaning is dependent upon the circumstances then surrounding the person, upon the character of the work to be performed, upon whether he has a family or a home in another place, and largely upon his present intention. Rindge v. Green, 52 Vt. 208.

There is some looseness and some conflict in the opinions in the definition given to the term “residence.’’ We need not stop to discuss these, because all agree that a residence, whether it must be accompanied animo manendi or may exist with a present intention at some time to remove therefrom, must be bona fide, not pretentious. Morris v. Gilmer, 129 U. S. 329, 9 Sup. Ct. 293, 32 L. Ed. 690. We are constrained to believe that the purported change of residence of the bankrupt from St. Rouis to East St. Rouis was pretentious only, not real; and was merely for the purpose of pretending to acquire a residence solely for the purpose of filing his petition in bankruptcy in a district in which he did not reside. Indeed, the bankrupt frankly avowed that to be his only purpose, and that he went to East St. Rouis with the then intention of leaving the place so soon as he had accomplished his purpose. There was no bona fide change of residence. There was no bona fide assumption of residence in East St. Rouis. He necessarily must spend the hours of business in St. Rouis. He left his home in St. Rouis, where he resided with relatives, and where he had passed his life, crossed the river, and-at much inconvenience to his business assumed a home in a city of stockyards, to' which, as his sister remarked, one is not apt “to go to unless for business; don’t go there for pleasure,” carrying such of his effects as he thought necessary in a single trunk, which he soon removed from the lodging he had engaged, and which was not returned for over a year, retaining at his lodging only articles of toilet and á nightshirt. He was a sojourner merely, and not a resident, of East St. Rouis. We look upon this transaction as an imposition upon the jurisdiction of the court. The Congress did not intend that one may select any court of bankruptcy which he pleases in these broad United States, and be enabled, through a pretentious removal to the district of that court, to obtain his discharge from his debts. To allow that to be done would open the door to grave frauds upon creditors, which we are not disposed to countenance.

“ It is objected that the petition to dismiss for want of jurisdiction 'comes too late; that the adjudication in bankruptcy is a judgment; "that the only relief to the creditor was to appeal within io days from that adjudication; To so hold would be to deny in 99 cases out of 100 all relief whatever, and to make easy the perpetration of fraud. In ’ voluntary cases the adjudication passes ex parte and forthwith. The time for appeal would have passed before creditors would in most cases receive notice of the adjudication, and the record made, by the bankrupt . would show nothing erroneous. Here there were no laches chargeable to the creditors, for promptly upon ascertaining the facts from the examination of the bankrupt the petition to dismiss was made. But, aside from that, it would be th’e duty of the court sua sponte, when it is led to suspect that its jurisdiction has been imposed upon, to inquire ‘ into the facts by some appropriate form of proceeding, and, for its own • protection against fraud or imposition, to act as justice may require. ■ Morris v Gilmer, supra.

The petition for review is denied, and upon the appeal the decree of the court below dismissing the proceeding is affirmed.