Thayer v. Thayer

• Decision Date: 16 April 1924
• Docket Number: 395.
• Citation: 122 S.E. 307,187 N.C. 573
• Parties: THAYER v. THAYER.
• Court: North Carolina Supreme Court

122 S.E. 307

187 N.C. 573

THAYER v. THAYER.

No. 395.

Supreme Court of North Carolina

April 16, 1924

Appeal from Superior Court, Davidson County; Shaw, Judge.

Action by Carl Thayer, Jr., by his next friend Mamie G. Hall against Carl Thayer. The case was ordered removed to another county, and plaintiff excepts and appeals. Reversed.

Where an illegitimate minor son, who had not been abandoned nor emancipated by his mother, lived with his grandfather, his legal residence was with his mother, and his action against his father for support and education was erroneously removed from the county where his mother resided to the county where his grandfather resided.

The plaintiff, an illegitimate son, brought suit in Davidson county against the defendant, his putative father, for support and education under a contract alleged to have been made by the defendant and the plaintiff's mother. The defendant claimed that the plaintiff was a resident of Montgomery county, and on this ground made a motion to remove the cause, and from the clerk's denial of his motion he appealed to the superior court. Public Laws Ex. Sess. 1921 c. 92, § 15. His honor heard the evidence, and found the following facts: The plaintiff lives with his grandfather in Montgomery county; he is the illegitimate child of Mamie G Hall, and is nine years old; his mother is a resident of Davidson county.

Upon these facts it was held as a matter of law that the plaintiff was a resident of Montgomery, and the cause was removed to this county. The plaintiff excepted and appealed.

Walser & Walser and Z. I. Walser, all of Lexington, for appellant.

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 defendant's 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 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 Case...