Bank of Hattiesburg v. Mollere

79 So. 87, 118 Miss. 154

• Court: Mississippi Supreme Court
• Decided: March 15, 1918
• Status: Published

Opinion

Stevens, J.,

delivered the opinion of the court.

Apellant was complainant in a bill filed by it under section 536, Code of 190;6, authorizing attachments in chancery against nonresidents. Appelleees H. P. Moliere and wife, were the defendants and alleged nonresidents of the state of Mississippi. It is charged in the bill that the defendants are indebted to the complainants, in the sum of two hundred and fifty-six dollars and eighty-three cents' evidenced by promissory note,- that the defendants are nonresidents of New Orleans, La.; that they were the owners of certain real estate particularly described in the bill; and that the complainant was entitled to an attachment and to have the said real estate subject to the payment of the said note, interest, and attorney fees. The writ of attachment issued and was duly levied on said real estate. The defendants answered, and their sole defense is that the house and lot upon which the attachment was levied is the homestead of the defendants. Upon hearing the chancellor awarded the complainants a personal decree for the debt sued for, but declined to subject the property levied upon. From that portion of the decree discharging the levy of attachment and releasing the property as exempt, the complainant appeals.

The testimony shows that Mr. Moliere and his wife some four years before the institution of this suit moved to Hattiesburg where Moliere operated a moving picture show. After conducting this business in Hattiesburg for a year or two, the defendant became financially embarrassed and went into bankruptcy. At that time Moliere had acquired and owned the house and lot involved in this suit, a portion of the money used in making the cash payment being advanced by appellant bank. The defendants used the premises as their homestead for a year or two and until after their bankruptcy, when they moved to New Orleans, in July, 1914. When leaving Hattiesburg they leased their home, and in delivering possession to the tenant they sold him a portion of the furniture and garden tools. The balance of the furniture the defendants had stored several months and afterwards shipped to New Orleans.

Mellere is an electrician by profession, and after leaving Hattiesburg went to Texas in search of a position, and, failing to find one, returned to New Orleans, where he and his wife lived for a time, with his father, and Moliere operated a jitney bus with his father’s car. The defendant then secured a position with an electric company in New Orleans, with whom he wa.s employed at the time of this trial, doing, at odd times some contract work on his own account. After moving from his father’s home, they lived at No. 5230 Kamp ■ street for a while, renting the place there, and using therein their furniture and effects, which they had moved from Hattiesburg. They then moved to No. 921 Leontine street, occupying a place they leased for a term of one year and where they were living at the time of the trial of this case, in March, 1916. They returned to Hattiesburg for the express purpose of trying this lawsuit, and then testified that the premises in question constitute their homestead, that in going to Louisiana they did so for the purpose of securing employment, and that they had a general intention of returning to Hattiesburg whenever they could find in Hattiesburg a satisfactory job or employment.

Mr. Moliere, among other things, testified to the following effect:

“Q. You have no definite idea now about when you will be able to come back here? A. No, sir. Q. You have no idea whether it will be two or three years, or when it will be? A. No, sir; but as soon as I can I am coming back though. Q. You stayed there on Kamp street for quite a number of months, and then you moved to Leontine street, where you are now living? A. Yes, sir. Q. And that is where you have your home now? A. I am living there now; yes, sir. Q. Then all of your family and your fixed place' of abode is in New Orleans, is it not? A. Yes, sir; my address is New Orleans, La,, No. 92.1 Leontine street.”

Mrs. Moliere to the same effect testified as follows:

“Q, You say that you hope that some time in the future you will be able to move back here to Hattiesburg? A. I do; yes, sir. Q. You have no idea though as to when that will be? A. Why, whenever Mr. Moliere gets employment here, or we are lucky enough to save up enough money to be able to come back here and Mr. Moliere can get back into business here; but if he gets employment here we will move back right away. Q. And if he cannot? A. Then we will have to wait until we can.”

The testimony leads us to the conclusion that the defendants at the time this lawsuit was tried were citizens and residents of New Orleans, La., and that they had ceased to reside on their homestead within the meaning of section 2157, Code of 1906. The only casualty or necessity here shown is financial embarrassment. The defendants were not reared at Hattiesburg or in Mississippi, but originally came from Louisiana. When Mr. Moliere failed in business at Hattiesburg, be left there in search of greener fields. His testimony, as also the testimony of his wife, shows that their return to Hattiesburg is contingent altogether upon their securing in Hattiesburg a position more favorable than the one they now have in New Orleans. They had no definite idea whether they would ever get another position in Hattiesburg- or engage in business there again, and no idea as to the length of time. The obstacle in the way of a speedy return may never be removed, and their intention or purpose to return is general. Indeed, it cannot be said that they have in the words of the statute “a purpose of speedily reoccupying” the homestead. This being so, the case is ruled by general principles announced in Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227. In the case mentioned our court, in quoting from Anderson’s Law Dictionary, among other tilings said:

“Mr. Anderson also defines nonresidence as: ‘Actual cessation to dwell within a state for an uncertain period without definite intention as to a time for returning, although a general intention to return may exist.’ ”

The cases of Moore v. Bradford, 70 Miss. 70, 11 So. 630, and Thompson v. Tillotson, 56 Miss. 36, are in point.

We do not intend to say that a householder may not leave his home in search of employment, with an intention to return. Each case is necessarily governed by- its own facts. The test laid down by our court in Meyer Bros. Drug Co. v. Fly rules the present case against the claim of the defendants. The decree of the learned chancery court, in so far as it discharged the attachment, will be reversed, attachment reinstated, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.