Carden v. . Carden

Supreme Court of North Carolina

Carden v. . Carden

12 S.E. 197, 107 N.C. 214

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1890

StatusPublished

Cited by14 cases

This text of 12 S.E. 197 (Carden v. . Carden) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carden v. . Carden, 12 S.E. 197, 107 N.C. 214 (N.C. 1890).

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Opinion

Shepherd, J.:

The single question presented by this appeal is whether, upon the facts found, the attachment should have been dissolved.

We are unable to distinguish this case from that of Wheeler v. Cobb, 75 N. C., 21. It is there said that, “ without deciding who, in law, is a non-resident in other respects, but confining the decision to the construction of this statute, the conclusion is, that where one voluntarity removes from this to another State, for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there for an unlimited time, such a one is a nonresident of this State for the purposes of an attachment, and that notwithstanding he may occasionally visit this State, and may have the intent to return at some uncertain future time.”

The prominent idea is, “that the debtor must be a nonresident of this'State, where the attachment is sued out, not that he must be a resident elsewhere. * * * The essential charge is, that he is not residing or living in the State, that is, he has no abode or home within it where 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 luith other residents in this respect.” Waple on Attachment, 35. We cannot understand how these latter conditions could have existed when the defendant was living in Maryland, visiting this State only once or twice a year, and with only a general intention of returning at some indefinite time and making his home here. Non-residence, *217 within the meaning of the attachment law, means the “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.” Weitkamp v. Loehr, 53 N. Y. Super. Ct., 83.

Reversed.

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Shepherd, J.:

The single question presented by this appeal is whether, upon the facts found, the attachment should have been dissolved.

We are unable to distinguish this case from that of Wheeler v. Cobb, 75 N. C., 21. It is there said that, “ without deciding who, in law, is a non-resident in other respects, but confining the decision to the construction of this statute, the conclusion is, that where one voluntarity removes from this to another State, for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there for an unlimited time, such a one is a nonresident of this State for the purposes of an attachment, and that notwithstanding he may occasionally visit this State, and may have the intent to return at some uncertain future time.”

The prominent idea is, “that the debtor must be a nonresident of this'State, where the attachment is sued out, not that he must be a resident elsewhere. * * * The essential charge is, that he is not residing or living in the State, that is, he has no abode or home within it where 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 luith other residents in this respect.” Waple on Attachment, 35. We cannot understand how these latter conditions could have existed when the defendant was living in Maryland, visiting this State only once or twice a year, and with only a general intention of returning at some indefinite time and making his home here. Non-residence, *217 within the meaning of the attachment law, means the “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.” Weitkamp v. Loehr, 53 N. Y. Super. Ct., 83.

Reversed.

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Bluebook (online)

12 S.E. 197, 107 N.C. 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carden-v-carden-nc-1890.

Opinion

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