17 La. Ann. 61 | La. | 1865
This suit turns upon a plea of domicil, made on the part of John M. Bach, defendant.
The record discloses the following facts : That the defendant had his domicil at the same time in the parishes of Jefferson and St. Helena. R. T. Taylor, on behalf of defendant, says that defendant owns a good deal of property in the parish of St. Helena, and that, for three or four years, he has claimed his domicil in the parish of St. Helena.
But, on cross-examination, the same witness testifies that Mr. Bach resides in the parish of Jefferson; that he is constantly backward and forward, but most of the time in Jefferson; that his residence during the winter is in Jefferson, and that his family is in Jefferson.
P. G. Lecorgne, witness for plaintiff, states he has known Mr. Bach for twenty years; that Bach now resides in Jefferson, and has resided there ever since witness knew him, with.ihe exception of some time when he lived on Washington street, in New Orleans; that defendant, during these twenty years, has lived more in Jefferson parish than any other, and that Mr. Bach’s family has always lived most of the time in Jefferson.
In addition to his evidence, the defendant introduced a declaration of his change of domicil from the parish of Jefferson to the parish of St. Helena ; and further sought to introduce his declarations in the record of a suit, and two deeds executed by him, wherein it is stated that the defendant was ' domiciliated in the parish of St. Helena ; which declarations and evidence, upon objection being made by plaintiff, were rejected by the court. The evidence so rejected, as well as the other evidence, being before us, we proceed to examine the same:
Now, regarding the evidence rejected by the court as admissible (upon which we pass no opinion), it does not materially strengthen the defendant’s plea.
We are satisfied, from the proof, that John M. Bach had, at the same time, two domicils : the one in the parish of 3 efferson, and the other in the parish of St. Helena. The law relative to plea of domicil is clear. Article 166 C. P. declares that, if a defendant reside alternately in different' parishes, he must be cited in that in which ho appears to have his principal establishment or his habitual residence. If his residence in each appear to be nearly the same nature, in such a case he may be cited in either, at the choice of the plaintiff, unless he has declared, pursuant to the provision of the law, in which of those parishes he intended to have his domicil.
To the same effect is Article 42 of the C. C. A change of domicil is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there. C. C. Art. 43. This intention is proved by an express declaration of it before the judges of the parishes from which and to which he shall intend to remove. C. 0. Art. 44. In case this declaration is not made, the proof of this intention shall depend on circumstances. 0. C. 45.
Upon the law and the facts thus presented, we are of the opinion that defendant, John M. Bach, had his principal establishment, at the institution of this suit, in the parish of Jefferson ; and, as he resided alternately in the said parishes of Jefferson and St. Helena, and did not declare his
Therefore, for these reasons, it is ordered, adjudged and decreed, that the judgment below be affirmed, with costs.