135 Mo. App. 276 | Mo. Ct. App. | 1909
(after stating the facts). — Appellant, Friedman Bros. Shoe Co., was garnished under an execution issued in the case of respondent against H. B. Sandeford. The service of garnishment was August 10, 1906. Sandeford Avas employed by appellant company, and had been for about fourteen years, as a traveling salesman in the State of Arkansas. At the trial of the garnishment proceeding, judgment was given against appellant for $834.01, pursuant to . the verdict of a jury, and this appeal was taken. Our statutes provide that no person shall be charged as garnishee for more than ten per cent of any wages due to a defendant in his employ, for the last thirty days of service, if the employee is the head of a family and a resident of this State. [2 Mo. Ann. Stat., sec. 3435.] The controversy in the case is regarding whether San-defprd was a resident of the State at the time of the service. The jury found against the garnishee for Sandeford’s total wages and, therefore, must have found he was a non-resident. These are the facts: he was a married man Avith one child, a daughter, and during the years of his employment by appellant, had resided in St. Louis, to Avhich point he returned for brief stays five or six times a year. In December, 1905, while his home was on McMillan avenue in said city,
The instructions to the jury granted at respondent’s request, are called into question on the appeal and particularly the first. It is said that instruction did not require the jury to find Sandeford, who it is admitted had been a resident of St. Louis, left this State with the intention of changing his residence. Further, that it suggested this thought; if he had abandoned a home in St. Louis, of the character described, and had established one of the like character in Pine Bluff, he was no longer a resident of this State, even though he preserved a fixed intention to remain away only temporarily, and to resume living here as soon as was consistent with the purpose of his removal. The instruction was drawn so as to define the sense in which the term “residence” was used in all the instructions. Though it purported to describe what would constitute a , legal residence in St. Louis, it impliedly described what would constitute one in Pine Bluff; and if the definition was misleading, it must have been prejudicial to Sandeford and appellant. The first paragraph of the instruction was copied from the opinion of the Supreme Court in State v. Snyder, 182 Mo. 462, 514, where it is approvingly quoted from an opinion of the Supreme Court of Michigan, and counsel for respondent say it is an accurate definition of a person’s residence, according to the decision of our Supreme Court. But many observations may occur in the judicial discussion. of a question, which are not intended to be given in charge to a jury, and cannot be with propriety unless, under the facts of the particular case, they will assist the jury in reaching a right verdict. What is meant by the terms “residence” and “domicile” and when they are synonymous and when not, have been considered by courts with reference to different purposes; such as a person’s testamentary capacity,
It is contended for respondent the word “residence/’ in the exemption statutes does not mean domicile, but the place where a person actually abides or dwells, regardless of Avhere his domicile is. Hence it is said if Sandeford ceased to abide in Missouri, he lost the right to claim any part of his wages as exempt from garnishment, even though his domicile continued to be in this State. The instructions for appellant tacitly rejected this notion, but it is advanced in argument in support of those given for respondent. Our difficulty in this phase of the case has been with a remark in the opinion of Stotesbury v. Kirtland, 35 Mo. App. 148, 159, a suit in equity wherein, on the appeal, the court found the facts. Kirtland had assigned to his minor children the income of an estate which had been settled in trust for his use. The assignment was made after the suit had been brought for the purpose of subjecting the income to the payment of a judgment against him. He had lived in Chicago for a year and was employed there, but his previous residence had been in St. Louis. This court found he was not a resident of Missouri, had left there meaning to return as soon as it might be practicable or convenient, and there was no proof his wife meant to return with him. The point for decision was whether Kirtland was a resident of this State, and the facts touching the question differed from those before us in that Kirtland had changed his place of business, and whatever intention he had to come back to Missouri was not shared
It is insisted Sandeford’s purpose to return to Missouri was not settled but indeterminate; was wbat is called in the books, a “floating” purpose, which does not suffice to retain a residence. The case of Stotesbury v. Kirtland, is a precedent for this position, as to which it is in accord with the authorities elsewhere. Whether Sandeford had a settled, instead of a “floating,” intention to keep his residence in St. Louis and return here when his daughter’s health was restored, was a question for the jury on all the facts. In dealing with it one of the many obscure points in the law of domicile arises; i. e., what is an indeterminate or floating purpose to return, which will not prevent a change of abode from working a change of residence? The expression “floating intention” appears to have been first used by Story. Among his rules on the subject of domicile is this one: “Eighthly. If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention to return at some future period.” [Conflict of Laws (8 Ed.), p. 50.] We have looked into many cases touching this subject, and from what is said in them, interpreted with reference to the facts before the court, we conclude an indeterminate or floating intention to return to a residence from which a party moves, does not include an instance where the intention is to return on the occurrence of some specific event which, in reason, may be anticipated; like the purpose cherished by Sandeford, if the testimony before us is true, to resume his abode in St. Louis when his daughter’s health would permit. In Hall v. Schoenecke, 128 Mo. loc. cit. 667, the Supreme Court said a temporary absence of a person from his usual residence, through a series of years, does not necessarily cause a loss
The judgment is reversed and the cause remanded.