Ludlow, Clark & Co. v. Szold

90 Iowa 175

• Court: Supreme Court of Iowa
• Decided: February 1, 1894
• Status: Published

Opinions

GriVEN, J.

I. The principal contention is as to the place of residence of the defendant J. Szold at the time this action was commenced, November, 15, 1889. It was admitted on the trial that Szold had been a resident of, and doing business at, Sioux City, Woodbury county for. two years prior to October 28,1889, at which time he was living in a rented house in said city; that on Saturday, October 26, he made four chattel mortgages, due on demand, upon his stock of goods and household furniture, for an amount largely in excess of their value, and on the following Monday morning, October 28, the mortgagees took possession of the stock and closed the store under said mortgages. The following facts aré shown by the evidence, with but little, if any, conflict: On Monday morning, October 28, Szold gave the key to the store to the agent of mortgagees, and inquired if anything more was wanted with him, and, on being told there was not, left the store, and was not seen there after that time. He was seen at his house on the evening of the twenty-eighth, and this was the last time he was seen in Woodbury county. Several officers who had writs to serve upon him on different days following the twenty-eighth failed to find him in Sioux City, after diligent search. Mrs. Szold was seen at the house where defendant had resided, several times within the two or three days following the twenty-eighth of October, after which she was not seen in that county, and the house was found to be vacant, and all the household goods removed. It also appears that, on October 23 or 24, Szold. was in Fort Dodge, and called on a railroad agent there to see about some goods that he had shipped tc Robert Grant, at Fort Dodge, and made arrangements to stop a car of apples billed to him at Sioux City, in transit, and to turn them over to Grant, at Fort Dodge. On November 10, Szold registered at the Arlington Hotel in Fort Dodge, inquired as to the rates, did not say how long he would remain, but said, “he expected to go in a commission house.” He said he had been in the wholesale commission business in Sioux City, and had had hard luck, and had to sell out everything to square up, and only had two car loads of apples left; also that he had sent his wife and family to her people in Peoria, Illinois. He remained in Fort Dodge until the morning of the sixteenth, when he and Grant left before breakfast; Szold saying that he was going east, but he did not do so. Neither Grant nor Szold were seen after that time. On November 14, when the sheriff of Webster county went to Grant’s place to levy the first attachment against Szold (one that is notin question), he found Szold there, “seemingly running the business.” The sheriff took possession of the goods under the writ, and received one key to the store from Szold. Others testify to Szold’s assisting Grant in his business during the time he remained. On the night of November 15 the sheriff received a warrant for the arrest of Szold, and on the morning of the sixteenth was unable to find him, or to learn the direction in which he and Grant had gone.

II. If, at the commencement of this action, November 15, 1889, J. Szold was a resident of Wood-bury county, then the action was properly brought in that county, and plaintiff’s attachment to, Webster county was authorized. Plaintiffs claim the law to be “that, where a residence is once established, it is presumed that the same continues until another residence is acquired.” They contend that it is not shown that Szold had acquired a new residence before the commencement of this action, and, therefore, his residence in Sioux City is presumed to have continued. This statement of the law has support in some of the cases, notably Church v. Crossman, 49 Iowa, 444, and Vanderpoel v. O’Hanlon, 53 Iowa, 246, 5 N. W. Rep. 119. In those cases it was sought to show abandonment of the old residence by showing that a new one had been acquired. The new not yet being acquired by a concurrence of the act and intention, the old was held to continue. They do not hold that abandonment may not be proven by other evidence than the fact of having gained another residence. In Nugent v. Bates, 51 Iowa, 77, 50 N. W. Rep. 76, the rule is stated thus: “When a residence is once acquired, it is presumed to continue until there is satisfactory evidence of abandonment.” In the recent case of BotnaVal. State Bank v. Silver City Bank, 87 Iowa, 479, 54 N. W. Rep. 472, it is said: “The law is well settled that, when a residence is once .established, it continues ‘ until there is ' an actual change of habitation, with an intention to make a new residence.” To hold that abandonment can be established only by evidence that a new residence has been acquired would render it impossible to show abandonment, in the cases of those whose whereabouts ■ are unknown. While the fact that a new residence has been acquired is convincing evidence that the old has been abandoned, it is not the only evidence by which abandonment may be proven. The presumption of continued residence may be rebutted by any competent facts that show abandonment; that show “an actual change of habitation, with an intention to make a new residence.”

III. Intervenors claim, not only that Szold had abandoned his residence in Sioux City prior to the commencement of this action, but also that he became a resident of Webster county. A distinction is recognized between legal and actual residence. In Hinds v. Hinds, 1 Iowa, 39; Love v. Cherry, 24 Iowa, 205; Bradley v. Fraser, 54 Iowa, 289, 6 N. W. Rep. 293, and other cases, — it is held that a person may be a legal resident of one place, and an actual resident of another, as when he goes from the place of his legal residence intending to return, — to reside temporarily at the other place. See, also, Code, section' 3507, and Fitzgerald v. Arel, 63 Iowa, 105, 16 N. W. Rep. 712, and 18 N. W. Rep. 713. Legal residence as distinguished from a mere temporary actual residence, is the residence contemplated in'section 2580 of the Code, relating to the place of bringing actions aided by attachment. 1‘The intention of the party, and his acts, are to be considered, in determining the question; and they must concur, in order to fix the fact of residence.” Cohen v. Daniels, 25 Iowa, 90. To enter the judgment which it did, the district court must have found, not only that Szold had ceased to be a resident of Woodbury county, but that he became, a resident of Webster county. There is no evidence that prior to leaving Fort Dodge he had become a nonresident of, or had even gone out of, the state. He had abandoned his residence in Sioux City. His family had gone. His property was taken from him, and his business was broken up. So far as appears, all that he owned was the property in Grant’s place, in Fort Dodge. After disposing of his family, he went to Fort Dodge; inquired for rates at the hotel; said he expected to go into a commission house; was seen a few days after in Grant's place, “helping with the goods,” and later in possession of the store wherein these attached goods were, “seemingly running the business,” and in possession of one of thekeys. He was thus engaged from his arrival, November 10, to the morning of November 16, when the property having been taken on attachments against Szold, and a warrant being in the hands of the sheriff for his arrest, he fled the country. These findings of the court upon questions of fact have the force and effect of a verdict, and must not be disturbed, if there is evidence to support them. While, if it were for us to pass upon the facts, we might find differently, we can not say that these conclusions of the lower court are not supported by the evidence. The acts of Szold, and his intention, as indicated by the facts, concur to warrant the conclusion that when he came to Fort Dodge it was with the intention of becoming a legal resident there, That within a few days, when his property was taken, and he pursued with, a warrant, he fled the country, does not disprove that he came to Fort Dodge with the intention of remaining. These conclusions being sustained, it follows that plaintiff’s action was brought in the wrong county, and their attachment to "Webster county was unauthorized. Code, section 2580. The fact that property of Szold was found in Woodbury county on a second attachment issued in this case did not give jurisdiction to that court. Szold, being a resident of this state, could only be sued in the county of his residence, in this action. The judgment of the district court is aeeirmed.