Cromer v. . Self , 149 N.C. 164 ( 1908 )

The plaintiffs as creditors of the defendant sued out writs of attachment, which were levied upon personal property belonging to the defendant in the city of Winston, under five hundred dollars in value.

There were several causes of a like nature pending which were consolidated with this. The defendant, through his attorney, moved to vacate the attachments upon the ground that he was not a nonresident, and that he was entitled to his personal property exemption.

Defendant appealed. On appeal to this Court the defendant assigned error as follows:

1. That his Honor erred, in that he failed to dismiss the warrant of attachment, issued in this cause, on the ground that the defendant, at the time of issuing the said warrant, was not a nonresident, and that the property was not subject to attachment.

2. For that his Honor erred in holding that the defendant was not entitled to his personal property exemptions of $500 out of the property attached.

It appears from the facts agreed that the defendant had been a resident of the State of North Carolina all his life up to the date of his leaving, and was a merchant in the city of Winston, N.C. for many years; that at July Term, 1907, of the Superior Court of Forsyth county, he was convicted of fornication and adultery and sentenced to twelve months on the county roads and, at the same term of court, an indictment was returned by the grand jury for larceny; that immediately after the term of court in which the defendant was convicted and said indictment was found, defendant offered to sell his property to Cromer Bros. Co., stating that he would have to leave the State; that immediately thereafter defendant fled the State to avoid the consequences of sentence and indictment, and was absent at the time the warrants of attachment were issued, and is now absent, and his whereabouts is unknown; that the summons in each of these actions was returned by the constable, endorsed "not to be found in Forsyth County"; that the defendant's wife and children are now living in Winston, N.C. and have been living in said city all the time; that prior to the sale the defendant Self, through his counsel, demanded his personal property exemptions out of the property levied on, but the constable refused to allot same, but sold all the property, contending that the defendant was not entitled to personal property exemptions, but was a nonresident of the State.

The only question presented by the assignments of error relates (166) to the status of the defendant. Upon the facts agreed is he, within the spirit and meaning of the Constitution, a resident of this State? Is he entitled to have his personal property exemption set apart in the fund from the sale of the goods?

The counsel for the defendant contends that the question presented has been heretofore decided adversely to the plaintiffs in the case of Chittyv. Chitty, 118 N.C. 647. It is true in that case a question somewhat similar was considered by the Court, but the Court was divided and the views of the dissenting justice are set forth strongly and with much weight of authority. But we are not called upon to determine how much weight we will give the case as a precedent in determining this, for the facts are essentially different. In the Chitty case it is found as a fact that the plaintiff, who claimed his homestead, temporarily absented himself to avoid service of a warrant "with the intention of returning as soon as the case against him should be thrown out of court"; "that the plaintiff spent his time in visiting relatives in various States intending to return," etc.

Thus we see that in the Chitty case a most important fact is found in the claimant's favor, and that is the animus revertendi. "A man retains his domicile if he leaves it animo revertendi." 4 Blackstone, 225; 2 Russell on Crimes, 18; 3 Rawle, 312.

In this case there is not only no such finding, but the facts fully justify the conclusion that the defendant fled the State with no intention to return and serve the sentence which the law has imposed upon him. There is no finding that he is temporarily absent visiting relatives but, on the contrary, it is admitted that his whereabouts is unknown.

Assuming that he may be technically a citizen of the State, he is not a resident within the meaning of Art. 10, sec. 1, of the Constitution, and only a resident can claim the benefit of our exemption laws. The (167) defendant is not temporarily absent to avoid service of process. From the time of his escape, after sentence pronounced condemning him to an ignominious punishment, he has been a fugitive from justice, for that alone can save him from the vengeance of the law. The motive that led to his flight will induce him to continue his residence beyond the confines of the State indefinitely, for in no other way can he avoid the punishment due to his crime.

He has left the State to escape the consequences of his crime and stands in the attitude of defiance to her power. It is not for such that our benevolent exemption laws were made. The fact that his family may continue to reside within the State, and that his domicile may be technically here until he acquires another elsewhere, is not enough under the circumstances to render him a resident of this State, for a person may have his domicile in this State and be at the same time a resident of another. In reThompson, 1 Wend., N. Y., 43; Frost v. Brisbin, 19 Wend., 11; Haggart v.Morgan, 1 Seld., N. Y., 423.

The identical question presented on this appeal was decided by the Supreme Court of New York in Mayor v. Genet, 11 Supreme Court Reports (4 Hun, 487), 63 N.Y. 646, in an opinion which fully sustains the view we take.

There are a number of authorities cited in the dissenting opinion ofClark, J., in the Chitty case which fully accord with our judgment in this.

Affirmed.

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