Wolf v. McGavock , 23 Wis. 516 ( 1868 )

Cole, J.

The attachment in this case was taken out against the defendant on the ground that he was a non-resident of the state. The attachment was sued out March 31, 1868. Hpon the traverse of the affidavit, the court held that the plaintiff had failed to sustain the issue that the defendant was a nonresident, and dismissed the attachment. The appeal is from that order. The question then is, Does the evidence show that the defendant was a non-resident of the state when the attachment was issued ? We are of the opinion that it does.

A variety of circumstances are relied upon to show that the defendant was a resident of this state, within the. spirit and meaning of the attachment law; that he had only left the state for a temporary purpose, but intending to return to it and live here with his family. It appears that the defendant owned several hundred acres of land in Eock county, including a large farm, with a dwelling-house upon it, in the town of Beloit. This farm was leased to a tenant, but there was a reservation of certain rooms in the dwelling-house, in which the defendant-had kept some of his household goods and furniture. The defendant likewise swore tbat Ms residence for tbe last' ten years bad been in tbe town of Beloit, and tbat wlien be left Beloit it was witb .tbe intention of returning to bis farm and residence. These are tbe most material circumstances relied upon to sbow. tbat tbe defendant was a resident of tbis state wben tbe attachment was issued.

On tbe other band, it appears tbat tbe defendant was, early in tbe year 1867, engaged as sub-contractor in constructing two miles of tbe Burlington & Missouri Railroad. He was living witb bis family at tbat time in Jones township, Union county, Iowa, engaged, witb a large number of men and teams, in performing bis contract. In October, 1867, he noted/ in that township, at the general election in that state. From Union county tbe defendant removed witb bis family to Omaha, where be made a contract for a bouse and lot, and went to keeping bouse. He has never, in fact, returned to tbis state, and gone to keeping bouse.

Now, in determining whether tbe defendant was a resident of tbis .state or of Iowa, during the most of the year 1867, we» are disposed to give decisive weight to tbe fact tbat be voted in tbat state in October, 1867. Frequently a person’s residence is of a doubtful nature, and bis intention as to that residence may be more equivocal and obscure. “ Both are sometimes to be gathered from slight circumstances of mere presumption, and from equivocal and conflicting acts. An intention of permanent residence may often be engrafted upon an inhabitancy originally taken for a special or fugitive purpose.” Story, Conf. of Laws, § 45. But we cannot conceive of any circumstance of more controlling weight, as bearing upon the question as to what state a man has taken up a permanent residence in, than tbe act of voting. Tbis act is so important and deliberate that it should have decisive preponderance upon tbe question whether a debtor believes tbat be is a resident of a particular state. For the defendant must be presumed to know tbat be bad no right to rote in Iowa unless be was a resident of tbat state. He exercised the elective franchise there because he considered himself at the time as a resident of that state, and as having the right to vote where he did. The idea that he “ understood he had got the privilege of voting because he was a railroad man, who was going around all the time,” is not very complimentary to his intelligence and understanding. He had been residing for some months with his family in Jones township previous to October, 1861, doing business there; and these facts, coupled with the act of voting at that place, indicate unmistakably an intention on his part of abandoning his residence in this state and of becoming a resident of the state of Iowa. We therefore think the evidence shows that the defendant was a non-resident of this state when the attachment was issued, and that the attachment was improperly dismissed.

By the Oourt. — The order dismissing .the attachment is reversed, and the cause remanded for further proceedings.