Lamar v. Mahony

1 Dudley Rep. 92

• Court: Richmond Superior Court, Ga.
• Decided: July 15, 1832
• Status: Published

Opinion

This case was tried upon a pica to the jurisdiction of the court, the defendant alleging his residence to have been in Columbia County at the service of the writ. The verdict is against the pico, uj on which the defendant moves for a new trial-on the following grounds.

1. The verdict of the jury is contrary to evidence, because the proof was that Joseph P. ?tIahouy was not resident of Richmond, but of Columbia county, at the time of the service of the writ.

2. Because the verdict is against law, since a man may reside in any county of the State with an in.entinó to remove further; and then he is liable to be sued in the county of his residence and not in that from winch he originally removed, and where his residence no longer is.

3. Because the verdict w a mm lot msiice, law, evidence, and the constitution oi the Atate.

Per f uriam. in den nng this motion it is not necessary to c i, aider these «rounds severally, as it t! ’ ends chLCv upon , ,. , . . . *■ ’ „.r. ,, / 1 .. tne mst : being a question oí íes, a¡K e. i k; ¡,.col ¿.,owed, that some few months before a. d i brought me defendant who formany years had been •> n - *>u of Au„n:ta ceased to rent a house there, with tn« intention oi removing to sonie of the Western Counties oi m. .hate, and that he uid actually remove as far as the county of Columbia, where, in consequence of the indisposition of his wife, and the necessity of attending to some unfinished business in Augusta, he remained at the house of his mother-in-law until the writ was served ; that he soon after abandoned his intention of settling in any of the Western Counties, and again returned, with his family to Augusta, where he still lives. It was dear, that, at the service of the writ, the defendant had no fixed residence in the county of Richmond, And it is admitted that his journey was not pursued, and that, he never readied his intended place of residence. The only question is. whether, by. his stay in Columbia, he acquired a legal residence there. And this depends altogether upon the intention of the defendant at the time of going into that county, or while there, to remain permanently ; and not upon his manner of living, as an independent housekeeper or a mere boarder, nor upon the length of time he was there. To constitute a legal residence, there must be t!v concurrence, of an actual residence, and an intention to remain. Avery man,is free to choose his place of residence, ami if such dioica be made, a day or an, hour in that place will give the right of residence there. Whether such choice have or have not been made, is a question of fact for the jury, to be determined, not alone, from express words of election fuliich might not at all times be proper testimony ) but from attendant circumstances showing an animus manendi. The jury which tried this cause were particularly instructed by the court, that if they found the defendant to have gone from Richmond to Columbia with the intention of remaining there, itis plea must prevail. But if, on the contrary, he had no such iuteniion, that he■ had actually chosen a difiereut place for his residence, and that he was in Columbia but temporarily until the health of his family or other circumstances might enable him to prosecute the intention with vs Inch ho left Richmond, his plea must fail; for the animus whi< h 's es.-a ntial to constitute legal residence would be wanting, and tlie defendant would be considered ...in ilineri a mere sojourner there; and that whether bis original design were subsequently prosecuted or abandoned by him, could in no oilier way afti-ct the case than as a circumstance from which intention might be inferred. The jury have found against the plea : and as the court after having heard argument and considered of this case, believes they were properly instructed, their verdict will not be disturbed. If the defendant had no residence in Columbia, none of his Constitutional rights have been violated, and justice requires he should pay a debt against which he has no defence whatever.

J. P. King for plaintiff. it. R. Reid for defendant.

The motion is refused, and execution ordered to issue.