25 Kan. 100 | Kan. | 1881
Lead Opinion
The opinion of the court was delivered by
This is a proceeding to review an order of the district court dissolving an attachment. We might fairly dispose of this case in a few words, and on a single question. The affidavit for attachment among other grounds alleged that the debt was fraudulently contracted. On the motion to dissolve, not a syllable of testimony is offered tending to disprove this. The circumstances under which the debt was contracted do not. appear — are not even referred to. Hence the sworn charge in the original affidavit remains uncoritra-dicted, and that sustains the attachment and compels a reversal of the order of the district court. And this point is made by counsel, and demands our attention. (Reyburn v. Brackett, 2 Kas. 227.) But justice to counsel and the interests involved compel a notice of other matters in the case. We are informed that several suits were commenced against this defendant in error, defendant below, and that they are waiting the disposition of this case. Hence some of the litigated and disputed matters should receive our notice.
Two principal questions exist, which are in dispute, and around which the testimony circles. This testimony being all of it by affidavit or deposition, comes before this court very much as before the district court — neither sees the witnesses; and while weight should be given to the conclusions of the district court, yet it is not as though that court saw the witnesses and measured the men. (Robinson v. Melvin, 14 Kas. 484; Shedd v. McConnell, 18 Kas. 594.) The two grounds of attachment which are challenged are non-residence, and a disposition of property with intent to hinder, delay and defraud creditors. These are undisputed facts. Defendant in 1869 commenced business in Atchison. This business continued until December 20,1879.' Upon that day mortgages for sev
Now it is familiar law that a residence once established is presumed to continue until it is clearly shown to have been changed. “ 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.’ ” (Hart v. Horn, 4 Kas. 239.) Doubtless residence and domicile are not absolutely synonymous terms, but evidently from the facts of that case domicile was used in the sense and as the equivalent of residence. And in so far as there may be any distinction between the two terms, it is not a distinction affecting the rule as stated.
Defendant’s residence confessedly was fixed and established for many years in New York. This while his business was carried on in Atchison. Again, the residence of a man who has a family which he maintains, and which has an established home, is 'prima facie with that family. Wherever he locates that family in anything like a fixed and permanent residence, it is presumptively his chosen place of residence. Wherever he may go for business or pleasure, he resides at home, and home is where the family dwell. Now defendant’s family dwelt in New York; they were established there.
Suppose the situation had been reversed — the family living in Kansas, and the defendant absent in New York for a year and a half on business and then returning and being with them for nearly three months: would there be much doubt as to his residence in Kansas? Would service of process upon him at the family dwelling during his absence have been worthless ? Could he not have claimed the benefit of the exemption law as to personal property? Or would the claim have been defeated by proof of his intent to make New York his home, and move his family as soon as their health would permit?
Again, while a man’s intentions are securely lodged in the recesses of his own heart, and he may safely assert that he intends one thing.or another, providing neither is absolutely inconsistent with his acts, yet by reason of this secresy of intention arises the familiar rule that men must be judged by their cpnduct rather than by their declarations. The conduct of the defendant and his son points to a continued residence in New York. While his business was in Atchison, yet that business remained for nearly eight years without his personal supervision, and in the charge of his son. When finally he came out to look after it, he was an old man, still ignorant of the English language, bringing nothing, boarding with his son, and making no arrangements for removing his family. After a long stay, he returns to his family in New York, and there remains for nearly three months before these suits. During this time nothing is being done toward a removal. His son and business manager, in a formal business document, speaks of him as “of the city of New York.” Can these concurring facts be all broken down by his simple.declaration that he intended to make Atchison his residence, and that his return to New York was for the purpose of removing his family?
And again, when a man voluntarily places himself in a position where all that is visible and tangible in his life is
The order of the district court will be reversed, and the case remanded with instructions to overrule the motion to dissolve the attachment.
Concurrence Opinion
I concur with my brethren in reversing the order of the court below, sustaining the motion to dissolve the attachment; but I do not concur in overturning the decision of the court below, holding that the defendant N. Stetter was not a non-resident of the state of Kansas. A
The term “residence” is defined by subdivisions 23 and 24 of section 1 of chapter 104 of the general statutes, (Comp. Laws of 1879, p. 920.)