46 Minn. 243 | Minn. | 1891
From the affidavits upon which the court below tried the motion to vacate and set aside a writ of attachment, based upon an affidavit wherein it was asserted, as a ground for the attachment, that the defendants were not residents of this state, it appeared that for at least two years prior to February 1, 1889, the defendants, husband and wife, actually resided in Minnesota, occupying a house and lot owned by them in the village of Brown’s Valley. Mr. Adlard was about that time appointed government blacksmith at an agency situated upon an Indian reservation, in South Dakota, and immediately proceeded there, with his wife and children, remaining in the government service about 14 months, during which time, the affidavit for attachment was made and the writ issued. A portion of his household goods and furniture he took with him. The remainder were stored in the dwelling-house before mentioned, and at different times during the 14 months (the number not appearing) both defendants
With this showing of facts we are asked to reverse an order of the district court whereby the writ was vacated and set aside, upon the ground that the defendants were non-residents within the contemplation of Gen. St. 1878, c. 66, § 147, relating to attachments. This subject has been discussed, very recently, in Keller v. Carr, 40 Minn. 428, (42 N. W. Rep. 292,) and the court below seems to have placed its conclusion upon that case. It was there said that whether a defendant’s absence from the state has been of such a nature and character that he has ceased to be an actual resident, within the meaning of the statute regulating attachments, is a question of fact to be determined by the ordinary and obvious indicia of residence. It must not be determined by construing the word “residence” as synonymous with the word “domicile,” for one absent from the state on business or pleasure, having the intent to return, may have a political domicile here, although his residence is elsevt here. He may be a non-resident of the state of his domicile, in the sense that his actual place of abode is not there. “Hence,” said Mr. Justice Mitchell, in behalf of this court, “ the great weight of authorities hold — rightly so —that a debtor, although his legal domicile is in the state, may reside or remain out of it for so long a time and under such circumstances as to acquire, so to speak, an actual non-residence, within the meaning of the attachment statute.” Casual or transitory ab
It is apparent, from an examination of the most approved authorities, that, in construing statutes relating to attachment of the property of non-residénts, a wide distinction has been recognized between an actual residence and a legal residence, the latter being generally deemed the domicile, and not the residence contemplated; the word “residence” being construed in its popular sense, as the act of abiding or dwelling in a place for some continuance of time. In Morgan v. Nunes, 54 Miss. 308, it was said that “residence” implies an established abode, fixed permanently for a time, for business or other purposes, although there may be an intent in the future, at some time or other, to return to the original domicile. In Long v. Ryan, 30 Grat. 718, it was laid down that to “reside” in a place is to abide; to sojourn; to dwell there permanently, or for a length of time. It is to have a permanent abode for the time being, as contradistinguished from a mere temporary locality of existence. In the frequently cited case of Frost v. Brisbin, 19 Wend. 11, it was said that a transient visit of a person, for a time, at a place, does not make him a resident while there; that something more is necessary to entitle him to that character; there must be a settled, fixed abode; an intention to remain permanently, at least for a time, for business or other purposes, constitute a “residence,” within the legal meaning of that term. To put it concisely, a “resident” of a place
Now, where was the actual residence of these defendants at the time of the making of the affidavit which has been attacked as untrue ? If it was in Dakota, then the proceeding was regular, although the defendants may have retained their domicile in Minnesota. Mr. Adlard had secured work in another state, and the entire family had departed from our borders, taking with them enough of their household goods to establish themselves in a new dwelling-place. They occupied a house in the new locality, and immediately went to housekeeping. The nature and purpose of the absence was not only such as to admit of the acquisition of another residence, but was such as to require its acquisition, and a “residence,” in the popular meaning of the word, was actually established upon the reservation. It was the abiding place, the home, of the family. To be sure, a portion of the household effects were kept in the building at Brown’s Valley, but that did not constitute or continue it the actual residence of the defendants ; they had absented themselves and were residing at another place. And while this question of residence is not to be determined by the mere fact that no member of the family remained in actual possession, it is plain that at no time during the period of 14 months could service of a summons have been made as at the house of the usual abode of either defendant. The house was uninhabited, except for about six months, when a tenant resided in the lower story. Tie was residing, for the time, in his own house, and not in the house
The main contention of the respondents seems to be that, as Mr. Adlard was employed by the government for an indefinite period of time, and, further, that as it was the intention of the defendants to return to the state when his term of employment should end, they could not acquire a residence at the agency. It is true that a person in government employ may be discharged at any moment, and that his term of service depends upon the will of the authorities. But this might be the situation had Adlard gone to work for a private individual out of the state. It can make no possible difference that he accepted a place under the government, from which he might have been relieved, without warning, instead of taking service at the hands of an individual having the same right of peremptory discharge. Nor was it material that from the affidavits it appeared that it was the intention of the parties to return to Brown’s Valley when Mr. Adlard’s employment ceased. If their status became fixed, the legal consequences attached to it were not affected by any secret animus or intent which they may have had. Keller v. Carr, supra. Their stay in Dakota, the length of time they might have an abode there, was wholly uncertain; it might have terminated in a day, it might have continued for years, and they could not be permitted to show an intention to return and resume a residence at .some indefinite time, in order to defeat the attachment. Risewick v. Davis, 19 Md. 82; Weitkamp v. Loehr, supra.
Order reversed.