Boone v. Savage

14 La. 169

• Court: Supreme Court of Louisiana
• Decided: October 15, 1839
• Status: Published

Opinion

Strawbridge, J.,

delivered the opinion of the court.

This suit commenced by attachment. A motion was made to dismiss the attachment; 1st, on the ground that the affidavit was insufficient; and 2d, that he was a resident of the parish. The affidavit is in the following words: “ C. Boone, the foregoing petitioner, sworn, says, that the sum of three thousand one hundred and fifty-two dollars and eighty-four cents, and the interest, as set forth in the foregoing petition, is justly due him, and that the said J. H. Savage resides out of this state,” &c.

I. The petition sets forth, “ that John H. Savage, residing in Jefferson county, state of Mississippi, is indebted to petitioner in the sum of three thousand one hundred and fifty-two dollars and eighty-four cents,” &c. The affidavit is written at the foot of the petition. We think it is sufficiently certain.

II. On the score of residence, it is shown that the defendant is a practising physician in Rodney, Mississippi; that his family resides in Rodney, where he is usually to be found; that he is a house-keeper there, and his family is now there.

He has a plantation and slaves in the parish of Carroll, which he has often visited for some years past, spending several days at a time, and that once his wife spent a week on this plantation. It is further shown, that in December, 1837, the defendant went before the parish judge of Carroll, and declared that he elected that parish as his domicil and future residence.

The articles Louisiana °Code oniy provide for micii by persons of the^latefand not those coming state. It requires a yeaHhTthU state by persons coming from another state, to acquire then they are liable to be sued byattachment,as non-residents. .

The articles 42 and 43 of the Louisiana Code, referred to, only provide for cases of a change of domicil by persons already residents of the state. The present case is that of a person resident in another state, attempting to acquire, a residence here. Oh this subject a law was passed in 1816: See 2 Moreau’s Digest, verbo “Residence,” 308. It declares that a “ residence within the state shall not be considered as

acquired untij. the individual coming into the state shall have remained within the same for twelve months following the date of his notice to the judge,” &c. And a second act passed in 1818, (2 Moreau’s Digest, 309,) alters, in some respects, the previous requisites, but still requires a residence r ? r 'i * i of one year.

It is already seen that the defendant’s declaration was mac|e jn December, 1837, and' this suit was instituted in ’ ’ April following.

If we take the law of 1818 as our guide, still the residence of one year is not shown.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, dissolving the attachment, and dismissing the petition, be annulled, avoided and reversed ; that the cause be remanded, with order to reinstate ■the petition and attachment, and to proceed therein according to law; the appellee paying the costs of the appeal.