144 S.E. 294 | W. Va. | 1928
The defendant, Edith R. Swisher, appeals from a decree of the circuit court sustaining an attachment issued against her estate (November 23, 1926) on the ground of non-residence. Upon a trial by jury of the issue, as to whether she was a non-resident of the State at the time of the issuance of the attachment, the trial court directed a verdict in favor of the plaintiff.
The defendant is the widow of the late Charles W. Swisher. She was reared from childhood in West Virginia, living in the city of Charleston with her family for many years immediately preceding the month of March, 1926, when she left Charleston for a brief stay with her husband at Hot Springs, Arkansas, where it was hoped that he might obtain relief from a serious malady afflicting him. His condition becoming gradually more serious, however, after remaining a while at *477 this health resort and acting on medical advice, she took him to North Carolina and from there to Walter Reed Hospital in Washington, D.C., where he died in April, 1927. She owns a residence on Virginia street of Charleston in which she formerly resided but which for several years has been rented to others; and at the time of leaving with her husband, was occupying, with her married son, an apartment on Quarrier street of Charleston, containing all of her household goods and personal belongings. Expecting to return within a very short while, she left the apartment in charge of her son who occupied the same until August or September 1926, when he, as her agent, leased it by the month to another. She has retained this apartment as her only fixed place of residence, although unable, on account of the continued illness of her husband, necessitating her constant attendance upon him, to return to Charleston until after his death.
The plaintiff claims that the court was justified in directing a verdict in its favor, upon the theory that a debtor is a non-resident in contemplation of the attachment laws whenever it is not possible to serve him with personal or substituted process within the State. Burt v. Allen,
Lyon v. Vance,
In an extended annotation, 26 A.L.R. 180, it is stated: "One domiciled in a state who is temporarily absent on business or pleasure is not a non-resident within the meaning of the attachment laws. Citing Lyon v. Vance, supra, and other cases from the states of Arkansas, Georgia, Illinois, Kansas, Louisiana, Nebraska, New York, Pennsylvania, Tennessee and Wisconsin.
Reversing the ruling of the lower court, the opinion in the case of Keller v. Carr,
We are of the opinion that the evidence is insufficient to establish the alleged non-residence of the defendant at the time of the attachment.
The decree is therefore reversed and the cause remanded.
*480Reversed and remanded.