Tanner v. King

| La. | May 15, 1837

Carleton, J.,

delivered the opinion of the court.

Suit having- been instituted under the"above title in this case against the defendant, the sheriff returned on the process of citation, “ served the same, by leaving a copy thereof, and petition with his overseer, Henry Campster, in person, at the domiciL of Richard King, said Richard King being absent from the parish.”

Judgment was taken by default, and being confirmed, defendant presented his petition, alleging its nullity, on the ground that be was not an inhabitant of the parish of Terre-bonne, where the suit was instituted, but that his residence was in the parish of Ouachita; that the court, therefore, had no jurisdiction over him, and concludes by praying that the judgment be declared null and set aside, and that all further proceedings thereon be enjoined. An injunction was accordingly granted. Tanner appeared as defendant in the case, and plead the general issue.

The cause was submitted to the court, who set aside the injunction, and rendered judgment as of non-suit against King.

The controversy between the parties turns entirely upon the question, whether or not King was an inhabitant of the parish of Terrebonne, at the time of the institution of the first suit. , .

The domicil of a person is liis home, where he establishes his and fixed residence; and this domicil is not changed absence°inS'ano-th®r . Parish> where he owns property,attend-ñefsthere! when it is his intention to return.

Kincaid, plaintiff’s witness in the injunction case, stated that he had known the plaintiff to be a resident of Catahoula, from the year 1820 until the early part of May, 1834, when he removed to the parish of Ouachita, where he now resides; that he had repeatedly heard him say that his absence from home, in the parish of Terrebonne, would depend upon the progress he made in the settlement of his brother’s estate in that parish ; that the main bulk of plaintiff’s property was in Ouachita.

Bryant, a witness on the same side, stated that he knows that King had frequently gone to Terrebonne, to transact the business of his deceased brother’s estate; that- he had always claimed his domicil in Catahoula, until May, 1834, fvhen he removed to Ouachita, with his family and furniture, and both this witness and Williams, a third witness introduced by King, are made to say, by their answers to certain leading questions, that he had removed permanently to Ouachita.

Two witnesses were examined on the part of the defendant, who stated in substance, that King was formerly joint owner of a sugar estate, in Terrebonne, with his brother, now deceased; that he was appointed curator to his brother’s estate, and afterwards purchased the whole on his own account ;■ that he frequently resided there five or six months during the winter and sugar making season, bringing with him his family, servants and provisions* and topic them off with him on going away; and one of them stated “ there were many plantations in that parish belonging to non-residents, and that he cannot say that he considered King as being a resident of that parish.

We do not agree with the district judge in the conclusions of fact he has drawn from this testimony* It is fully shown that King’s fixed residence had been for near fifteen years in Catahoula, and that in May, 1834, he removed, with his family and furniture, to Ouachita.

A man’s domicil is his home, where he establishes his household, and surrounds himself with the apparatus and comforts of life. Though he departs for a season, it is always with the intention to return. When once fixed, it will continue until the contrary be affirmatively shown. He may change it at will, and any restraint upon his choice would be an abridgment of his rights. If he remove to another parish, his intention of making his domicil there may be manifested by his declaration before the judge, or may be inferred from circumstances. Louisiana Code, article 45. Code of Practice, article 168.

* The law seeks for the intention, and allows every citizen freely to select his domicil accordingly, as his interest, inch-J 4 o j i 7 nation or even caprice may direct. The intentions being combined with actual residence, the purposes of the law are satisfied.

Though King passed a portion of several years in Terre-bonne, yet his motives are explained. His interest carried him thither: he was only a sojourner, without any intention to remain longer than his business required. Should it appear in any degree doubtful, whether he had fixed his domicil in Ouachita, or still retained it in Catahoula, there can be no doubt that it was not in the parish of Terrebonne.

We think the court erred in dissolving the injunction. It is, therefore, ordered, that the judgment of the District Court be reversed, that the injunction granted by the court be made perpetual, and that Lemuel Tanner, the plaintiff in the first suit, pay costs in both courts.