Sproat v. Hall
155 N.W. 361
Mich.
1915
Check Treatment
Ostrander, J.

(after stating the facts). Whilе our statute was copied from Massachusetts, in which State its form, as copied, had been reached by successive modifications, still the whole chapter, in its present form, is “to be reаd as one act, with its several parts and clauses mutually acting on each other as their sense requires.” Conrad v. Nall, 24 Mich. 275, 277, 278. Its construction and its application to cases like the one before us was settled many years ago. Campbell v. White, 22 Mich. 178; Conrad v. Nall, supra; White v. Campbell, 25 Mich. 463. In the first of these cases it was ‍‌​‌​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌​​‌​‌​‍distinctly held that it was the leg*33islative intent - that the operation of the exception should be concurrent with the existence of the оbstacle which prevents service upon the debtor, and that neither absence from the Stаte nor residence out of it will, of itself, suspend the running of the statute, but both must exist to take tfie casе out of the statute. In Conrad v. Nall, which was an action on a judgment, the court charged the jury as follows:

“First. That, if they should find that the defendant had not resided in the State ten full years subsequent to ‍‌​‌​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌​​‌​‌​‍the rendition of the judgment, the action was not barred, and the plaintiffs were entitled to recover.
“Second. That, if they found that the-defendant became a resident of Ohio before the expiration of ten years from the recovery of the judgment, the statute did not begin to run again in his favor until his return to the State to reside.
“Third. That, tо avail himself of the statute, the defendant was required to prove that, deducting all the times of his аbsences from, and residence out of, the State, he was within the State ten years after the rеcovery of the judgment and before the commencement of this suit.
“Fourth. That, to avail himself of his temрorary returns, he was required to show that his return was actually known to the plaintiffs, or so ‍‌​‌​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌​​‌​‌​‍open аnd notorious as connected with some locality that the plaintiffs, by using ordinary diligence, could hаve known of them.”

This charge was apparently approved, and the judgment for plaintiff was affirmed.

The rule of the cases cited has not been questioned • — certainly has not been changed — by any decision to which our attention is directed. Applied to the facts, it is at once evident that the period of defendant’s residence in the State, if he resided here at all, is of сontrolling importance. We cannot say, as matter of law, that the profession of an actor, who usually, during the theatrical season, travels from State to State, pre*34eludes his having a home at a particular place, the fact of which may be so notorious as to bе discoverable by a creditor ‍‌​‌​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌​​‌​‌​‍residing in the same State. The phrase “and reside out of the State,” in our statute, was interpreted in Campbell v. White to import,

“something so distinct, definite, and fixed as to constitute the party’s hоme the place of permanent abode, which, whenever left temporarily or on businеss, the party intends to return to, and on returning to, is at home.”

There is no reason for giving the term “reside in thе State” a different meaning. There was testimony from which a jury might have found that defendant had such a hоme in Detroit from the spring of 1905 until suit was begun. There was testimony sustaining plaintiff’s theory of a continued nonrеsidence of defendant.

It is said by counsel for appellee that the court expressеd an intention of submitting the question to the jury, and was deterred from so doing by counsel for defendant. The сourt made a statement of what he understood the testimony to show, and, to some extent, his views of the controlling rules of law. In doing so he eliminated defendant’s theory of the effect of defendant’s residence in the State from and after 1905. Later, in ‍‌​‌​​​‌‌‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌​​‌​‌​‍a colloquy, the court having expressеd the opinion that defendant was bound to make it appear that he had been in the Statе a consecutive period of six years, or a number of times aggregating six years, before suit wаs begun, and after the demand accrued, and that this might be a question for the jury, counsel for defendаnt said that the testimony undoubtedly failed to establish either fact. But he also said in that connection :

“Now, talking about residence in Michigan, that is another proposition, but I understand that is eliminated.”

I think it sufficiently appears that counsel for de*35fеndant did not deter the court from submitting the question of defendant’s residence in the State to the júry. His remarks were made with reference to rulings which treated the question of residence as of no importance, rulings which rejected his defense, even if the fact of defendant’s residence in Dеtroit, as claimed by him, was established. This view of the position of counsel is further sustained by the form of his requests to charge which were refused. I think, therefore, he is entitled to urge in this court that the rejeсtion of his theory by the court below was error, and that his theory called for a submission of the question of defendant’s residence to the jury.

The judgment is reversed, and a new trial ordered.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.