88 Ill. App. 101 | Ill. App. Ct. | 1900
delivered the opinion of the court.
The principal question presented by appellant’s counsel is as to whether appellant was a resident of the State of Illinois at the time of the issuance of the writ of attachment in aid, and he also claims that there was no "evidence as to the amount due on the Michigan judgment; that this judgment was premature, erroneous and excessive in amount; that the transcript thereof should not have been received in evidence; that the declai’ation in this case was filed too late; that there was error in the court’s rulings upon instructions, and that the court should have allowed the motions in arrest and for a new trial.
After a full consideration of the evidence on the question of the residence of appellant at the time of the issuance of the attachment in aid, and at the time of the commencement of this suit, we think it is clear that appellant left the city of Chicago, where his residence was during the year 1895 and up to March, 1898, and went to Hew York about the 16th of March, 1898, for the purpose of avoiding the service of process fipon him in the suit which he expected would be commenced against him by his wife for a divorce, and that with that purpose in view he gave up his residence in Chicago for an indefinite time, resided in hotels at Hew York, doing no particular business, and that up to the time of the taking"of his deposition in February, 1899, he had no definite intention of returning to Chicago and there resuming his residence. This we are of opinion is sufficient to bring appellant within the purview of the clause of our statute with reference to attachments, and to make him a non-resident of the State of Illinois within the meaning of the statute at the time of the commencement of this suit, as well as at the time of the issuing of the attachment writ herein. Waples on Attachments, Secs. 34 and 39; Drake on Attachment (5th Ed.), Secs. 58, 61, 62, 64 and 65; Wheeler v. Cobb, 75 N. C. 21; Carden v. Carden, 107 N. C. 214; Lawson. v. Adlard, 46 Minn. 243; Keller v. Carr, 40 Minn. 428; Hanson v. Graham, 82 Cal. 631; 8 Am. & Eng. Enc. Law, 291 and 294; Wells v. Parrott, 43 Ill. App. 656; Pullian v. Nelson, 28 Ill. 115; Barron v. Burke, 82 Ill. App. 116-21, and cases there cited.
In Waples on Attachments, Sec. 34, the author, in speaking of non-residence within the meaning of attachment statutes, says:
• “ The essential charge is that he is not residing, or living in the State; that is, he "has no abode, or home within it, wrhere process may be served so as effectually to reach him. In other words, his property is attachable, if his residence is not such as to subject him personally to the jurisdiction of the court, and place him upon equality with other residents in this respect.”
The same author, in Sec. 39, says:
“ Á debtor may have his property attached, as that of a non-resident, if he has not a place of abode in the State at Avhich summons can be served. * * * It may be correctly said,that attachment against the property of one absent from his domicile, and out of the State in which it is located, may be maintained as against a ‘ non-resident ’ Avhere the statute provision uses the term so as to signify one not actually present and residing in the State when the Avrit is issued.”
In the Carden case, supra, the court say :
“ The prominent idea is that the debtor must be a nonresident of the State Avhere the attachment is sued out, not that he must be a resident elsewhere. "x" * * The essential charge is that he is not residing or living within the State; that is, that he has no abode or home Avithin it, where process may be served so as effectually to reach him.”
In 8 Am. & Eng. Ency. of Law, 294, it is said :
“ Protracted absence rendering the service of ordinary process impossible, is equivalent to non-residence, if there is no place within the jurisdiction at which the summons may be legally left. ”
In the Keller case, supra, the court, in speaking of non-residence, among other things, say:
“ The question, then, becomes really a question of fact, Avhether the defendant’s absence from the State has been of such a nature and duration that he has ceased to be an actual resident of the State, and this must be determined by the ordinary and obvious indicia of residence.”
In Barron v. Burke, supra, this court, in speaking of what wras a residence in this State, within the meaning of the attachment act, say: “ Where a man has a settled and fixed abode, with the intention to remain there permanently for a time, for business and other purposes, then in law such abode is his residence,” citing cases, among others the case of Board of Supervisors v. Davenport, 40 Ill. 197, in which the Supreme Court say, on the same subject: “ There must be a settled, fixed abode, an intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence within the legal meaning of the term;” and the court held that the defendant in the case under consideration had two residences, one in Illinois and one in Hew York.
Most of the cases cited by appellant are with reference to statutes relating to elections and homestead, and can not be said to be strictly applicable in the construction of the attachment act. They relate rather to domicile than to residence. As to such the authorities make a distinction.
In Waples on Attachment, Sec. 39, the author says, in speaking of attachment statutes, “Residence, as used in the statutes, is not synonymous with domicile. One may have several residences, but he can have but one domicile. His principal residence is his domicile.”
In the Lawson case, supra, the court say:
“ A wide distinction has been recognized between an actual residence and a legal residence, the latter being generally deemed the domicile, and not the residence contemplated; the word ‘residence’ being construed in its popular sense as the act of abiding or dwelling in a place for some continuance of time.”
So, in the case at bar, it might well be held that appellant’s legal residence or domicile was in the State of Illinois, while his actual residence was in Hew York. See also Drake on Attachment, Secs. 58 and 65.
In any event, as contended by appellant, the question as to what was the actual residence of appellant at the time of the issuance of the attachment writ, was one of intention, a fact to be submitted to the jury, under proper instructions from the court (Risewick v. Davis, 19 Md. 94), and we can not say that the evidence did not entirely justify the jury in finding that appellant’s actual residence was in the State of Hew York.
The certified copy of the judgment rendered in the Michigan court was, in our opinion, ample to prove the amount due thereon, and justified the judgment rendered herein, which was for the amount of the Michigan judgment and the costs shown by a certified copy of the bill of costs of the Michigan court. Ko interest seems to have been included which might properly have been allowed.
The contention that the Michigan judgment was premature, erroneous and excessive in amount, is a matter of which we have no cognizance, under the facts of this case, which show that the Michigan court had jurisdiction. If there was error in the rendition of the judgment by the Michigan court, it having jurisdiction and no fraud being charged, that is a matter which would have to be redressed in a direct proceeding by appeal or writ of error from that judgment. Black on Judgments, Secs. 252, 261 and 267; Freeman on Judgments, Sec. 435; Danforth v. Danforth, 111 Ill. 241; People v. Seelye, 146 Ill. 221.
The claim that the transcript of the Michigan judgment was not properly admitted in evidence is not tenable for two reasons: First, it does not appear by the abstract that any objection was made to its admission in evidence; and second, it seems to have been properly certified under the acts of Congress.
The claim that the declaration in this case ivas filed too late, is not tenable, because no service of process was had upon appellant, and he did not enter his appearance until the July, 1898, term of the court, and the declaration was filed before that term, to wit, July 7, 1898.
Complaint is made of the use, in plaintiff’s instruction Mo. 2, of the phrases “ within any definite time ” and “ actually living in the State of Mew York at the time,” and also that the instruction fixes the date of the writ of attachment as the time which should govern as to appellant’s non-residence, instead of the date of the commencement of the suit. We see no objection to the instruction in the re-, spects mentioned. The non-residence should be determined as of the time the affidavit was made, as that was the commencement of the attachment. Pullian v. Nelson, 28 Ill. 115.
The fourth instruction is criticised because of the use of the phrases, “ local habitation or place of abode ” and “ permanently, at least for an indefinite time.” We see no objection to the use of the phrases in the connection in which they are used in the instruction. The same is true with reference to the modification of appellant’s instruction quoted in the statement preceding this opinion. 40 Ill. 97, supra.
The refused instruction asked by appellant, and quoted in said statement, was in substance covered by other instructions.
It is also claimed that the court erred in instructing the jury to assess plaintiff's damages at $47,811.29, if they should find for the plaintiff. There was no error in this respect. No defense was made upon the merits, and the proof justified the instruction.
No argument is made with reference to the rulings of the court in denying the motions in arrest and for a new trial 'which are not fully covered by the other contentions of appellant’s counsel, to which we have referred and disposed of.
Being of opinion that there is no reversible error in the record, the judgment is affirmed.