Glover v. Glover , 18 Ala. 367 ( 1850 )

CHILTON, J.

The bill charges that the defendant, after fraudulently removing his effects to this State, to avoid providing the complainant the means of subsistence, has suddenly pretended to remove to the State of Tennessee, with the fraudulent intent of evading the jurisdiction of this court; that he has done this in the anticipation that complainant was about to take steps to compel him to provide for her; that nearly, if not quite all the property and effects of said defendant, are in this State, and that she verily believes that this State is his real place of residence, as far as he can be said to have any place of abode; that since he left Virginia, she has heard of him as wandering about without any fixed place of abode, but that this State was his acknowledged place of residence, until about the time complainant was commencing proceedings against him, and she believes that he left this State with no other intent or purpose than to evade her just claims upon him; aud that such is his unsettled conditron, that if she cannot have a remedy in this State against him, she is utterly remediless.

The party, having acquired a domicil in this State, must be presumed to reside here, until he acquires one elsewhere, upon the well settled doctrine, that when once a domicil has been acquired, it is not lost until a new one is actually gained facto et animo.— The State v. Hallet, 8 Ala. 161.

In the case before us, the party, to evade the just demand of the complainant, has pretended to remove to Tennessee, but is really wandering about, with the object and intent of avoiding the jurisdiction of the court. Such conduct is a fraud upon the jurisdiction of the Chancery Court, and cannot be allowed to screen the party from amenability to its process.

The case falls clearly within the equity, if not the letter of the statute, authorising the court to order publication against the defendant (Clay’s Dig. 352, § 44,) upon the proper affidavits being filed, that the defendant cannot be found at his usual place of abode upon inquiry being made for him, and that there is just cause to believe that such defendant is gone out of the limits of the Stale, or has otherwise absconded, to avoid being served with process. From the allegations of this bill, he must be regarded as a resident of this State, so that the principle settled by this court in the Heirs of Holman v. The Bank of Norfolk, (12 Ala. 369,) and upon which a case between these same parties in 16 Ala. 440, was made to turn, does not apply. Since the passage of the statute before cited, it may safely be asserted as an undeniable legal proposition, that if a party, residing here, absent himself, with the view and intent of avoiding the jurisdiction of the Chancery Court of this State, his absence shall not avail him to oust the court of jurisdiction. Were the law otherwise, the grossest fraud and injustice might be practised, and the courts of equity rendered powerless to afford relief, by the fraudulent act of the defendant.

The chancellor erred in dismissing this bill. His decree is consequently reversed and the cause remanded.