Williams v. Henderson

18 La. 557 | La. | 1841

Simon, J.

delivered the opinion of the court.

Defendant is appellant from a judgment rendered ag'ainst him for the amount of a Bill of Exchange, by him drawn at Warrenton, on the 23d of December, 1836, on the commercial house of Brander, McKenna & Wright, to the order of George Henderson, and subsequently endorsed by the latter.

Our attention is first called to the declinatory exception taken by said defendant, on the ground, that his legal domicil and .principal establishment are, and have been for a long time, in the parish of Carroll, and not in the parish and city of New Orleans, in which, he insists, he is not suable.

In support of this declinatory exception, several witnesses haveb een examined, whose testimony shows, that the defendant has a plantation in the parish of Carroll, very well stocked with negroes and every thing else necessary for carrying on a plantation ; that he is now improving said plantation, and was lately putting up a nice house upon it; that he has no other real estate in any other parish; that he has had a plantation in Carroll for the last ten years ; has resided there since the latter part of 1836, erected a house on the same plantation in the same year, and that with the exception of spending a part of the summer away, he has constantly resided in Carroll from 1836 up to the present time (January, 1841); that his family resides there, but are now in New Orleans, spending a few months at a boarding-house; that defendant’s and family’s principal residence is in the parish of Carroll; that he is a member of the police jury of said parish, and has been repeatedly home, since he came down to the city. On the other hand, it has been established, that the defendant came to this city in September, 1840, opened a cotton commission-house, and published a notice to that effect in the papers; that he has a sign over bis door as a commission-merchant; and is here for the purpose of receiving any favorable consignment, which may be made to him : that he has rented an office for some time, and rented a part of it out; one of the witnesses testified, that he saw a circular of the defendant’s slating that he intended coming here to locate and establish himself, soliciting the patronage of planters and others ; that his consignments are small, few and far between, and that he does not receive much cotton. Some of the witnesses stated, that the defendant said, that if he could make certain arrangements, he would quit the commission business and return to his plantation; that he would not accept any drafts, unless he had the cotton in his hands ; that he had come down here to try the business ; and that, being a member of the police jury, he frequently said, that he would be back in time for the meeting in June.

From this evidence, it does not appear to us clear, that the acts of the defendant are such, as to show on his part a manifest intention of removing from the parish of Carroll to New Orleans, and to make the city the place of his domicil. The 42d article of the Louisiana Code says, that “the domicil of each citizen is in the parish, wherein his principal establishment is selected; and that the principal establishment is that, in which he makes his habitual residence.’’' The art. 43 provides, that “ 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.” The art. 44 indicates an express declaration made before the judges of the parishes, from which and to which he intends to remove, as being a sufficient proof of intention ; and by the art. 45, if not such declaration has been made, the proof of the intention must depend upon circumstances. According to the art, 166 of the Code of Practice, “if a defendant reside alternately in different parishes, he must be cited in that, in which he appears to hay & his principal establishment, or his habitual residence;" and “ if his residence in each appear to be nearly of 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,” By the art. 167, “if the defendant change his domicil, he must he cited in the parish, where he has resided within the last year, or within that where he has declared, in the manner prescribed by law, that he intended to have his domicil.” And in the words of the art. 168, “if the.defendant has not made such a declaration, he may, nevertheless, be cited in the parish, where he lives, though he has not resided one whole year in it, if he has done in that parish, acts which manifest sufficiently, that he intended to make it the place of his domicil.”

felXnt1'ownf'a plantation, with. a dwelling-house, in a dis-where he ha’s re-yelrsfexeeptoe-pasl0nal absence in travelling, and afterwards opens a commis,sion house in ^’riew^to^try keeps his family at a boardinghouse/ .Beta, sucha change of Authorize8 aluit ^im months after-wards at his new residence.

In this case, the defendant has made no’ declaration, has not resided one year in the city, and our inquiry must consequently be limited to the question, whether from the circumstances shown by the evidence, he has done such acts as to evince a manifest intention of making New Orleans the place of his domicil ?

As this court has said in the case of Waller vs. Lea, 8 La. Rep. 215, “the intention alone, however formally expressed, would not suffice ; it must be complied with by the act of residing in the new parish.” In the case of Hennen vs. Hennen, 12 La. Rep. 195, this court held that, “the act of residing must be combined with the intention :” and in the language of this ° ° court, in the case of Turner vs. King, 11 La. Rep. 178, “a man’s domicil is his home, where he establishes his household, and surrounds -himself with the apparatus and comforts oflife.”

Under a correct application of these principles of law and rr jr r jurisprudence, can it be said that the defendant has lost or abandoned the domicil which he had m the parish of Carroll, and that he has acquired a new domicil in the City of New Orleans ? Or can it be contended that his residence in each place appears to be nearly of the same nature, and makes him x A í suable in either ? What are his acts ? after having resided for a number of years in Carroll, where all his property is situated, where his household is established, where his family resides, and where he has surrounded himself with the apparatus and comforts of life, he thinks proper and convenient to come down N to New Orleans, in September, 1840, (t^o months -before the institution of this suit) to try the business, to open a cotton commission house, and to offer his services to planters and others as a commission merchant; he does not bring his family with him, except to spend a few months at a boarding house. The consignments which he receives, are small, few and far between ; he goes home repeatedly during the business season ; is a member of the police jury of the Parish of Carroll, where he expresses his intention to return in time for the meeting in June ; and far from manifesting any determination on a change of domicil, he seems disposed to make such arrangements as to quit the commission business and to return to his plantation.

We cannot agree with the judge a quo in the conclusions which he has drawn from the acts of the defendant. They show nothing but an intention on his part to make an experiment, and to try if he could successfully undertake the commission business in New Orleans during the winter; so far he must be considered only as a sojourner; his motives are sufficiently explained by the circumstances, and it does not appear to us that he ever had any intention of remaining in the city longer than it was necessary to try the success of his experiment; his ulterior determination was, perhaps, to depend upon the result of his commercial pursuits, but in the meantime, his domicil and principal establishment continued to be in the Parish of Carroll. We are therefore of opinion that the intentiou of the defendant being not combined with actual residence, the purposes of the law are not satisfied, and that the District Judge erred in overruling his declinatory exception.

For the same reasons, we do not think that the defendant's short and momentary residence or sojourn in this city is nearly of the same nature with his residence in the Parish of Carroll, so as to be sued in either ; he may, perhaps, acquire it hereafter, by subsequent acts ; but as the case stands at present, we feel no hesitation in saying that he was not suable in any other parish but in that of Carroll.

It is therefore, ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; that the defendant’s declinatory exception he sustained, and that this suit he dismissed, the plaintiff and appellee paying costs in both courts.