Thayer v. . Thayer

122 S.E. 307, 187 N.C. 573, 1924 N.C. LEXIS 345

• Court: Supreme Court of North Carolina
• Decided: April 16, 1924
• Status: Published

Opinion

Adams, J.

An action of this character must be tried in the county in which the plaintiff or the defendant resides. C. S., 469. The defendants residence is in Montgomery County, and if the plaintiff resides there the cause was properly removed; but if the plaintiff is a resident of Davidson County the order of removal was improvidently made.

Domicile is of three kinds — domicile of origin, domicile of choice, and domicile by operation of law. As a general rule, the domicile of every person 'at his birth is the domicile of the person on whom he is legally dependent, and in case of illegitimacy the domicile of origin that of the mother. A domicile of choice is a place which a person has chosen for himself, but an unemancipated infant, being non sui juris, cannot of his own volition select, acquire, or change his domicile. A domicile by operation of law is one which the law determines or attributes to a person, without regard to his intention or the place where he is actually living. It is consequential and usually arises out of legal domestic relations, as that of parent and child, or that of ¡the wife, resulting from marriage.

In accordance with these principles the domicile of a legitimate child during minority, as a general rule, follows that of the father, but the domicile of an illegitimate child is ordinarily governed by that of the mother.

In Udny v. Udny, 9 Eng. Ruling Cases, 798, Lord Westbury said: “It is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate.” This principle has been gener ally adopted by tbe American courts and is sustained by numerous authorities. 19 C. J., 399, 410, et seq.; 9 R. C. L., 547; 14 Cyc., 845; 10 A. & E., 11; Estate of Hanning, 79 A. S. R., 43; R. R. v. Kimbrough, 115 Ky., 512; Danbury v. New Haven, 5 Conn., 584; Sudler v. Sudler, 49 L. R. A. (N. S.), 861, note; Bedgood v. McLain, 94 Ga., 283. See, also, Reynolds v. Cotton Mills, 177 N. C., 412; C. S., 1654; Rules 9 and 10.

Of course, there is a technical distinction between “domicile” and “residence” (Roanoke Rapids v. Patterson, 184 N. C., 135), but there is no suggestion that the domicile of the plaintiff’s mother is in Montgomery County, and his Honor’s finding shows that her residence is in the county of Davidson, hinder the circumstances disclosed, the residence of the mother, in our opinion, is the residence of the plaintiff; and as the plaintiff has not been emancipated or abandoned by his mother, the mere fact that he is living with his grandfather in Montgomery County does not affect our conclusion. The order removing the cause from Davidson to Montgomery must therefore be

Eeversed.