17 D.C. 596 (D.C.D.C. 1888), 22,172, Gorham v. Shepherd

Docket Nº:At Law. 22,172.
Citation:17 D.C. 596
Opinion Judge:MR. CHIEF JUSTICE BINGHAM:
Party Name:CHARLES T. GORHAM v. ALEXANDER R. SHEPHERD.
Attorney:MESSRS. W. F. MATTINGLY and A. C. BRADLEY, for the motion. MESSRS. EDWARDS & BARNARD, contra :
Case Date:October 22, 1888
Court:Supreme Court of District of Columbia
 
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Page 596

17 D.C. 596 (D.C.D.C. 1888)

CHARLES T. GORHAM

v.

ALEXANDER R. SHEPHERD.

At Law. No. 22,172.

Supreme Court, District of Columbia.

October 22, 1888

1. A citizen of the District does not lose his citizenship by departing therefrom for a temporary period, when there is nothing to show that he left the District with the intention of becoming a citizen of another country or State, or that while away he did not regard this District as his home.

2. Section 767, R. S.D. C., is to be taken as meaning that no action or suit shall be maintained in this Court by original process against any person who is not an inhabitant of, or found within, the District. There is nothing in the statute which prevents a suit being commenced against such a party, to be afterwards proceeded with when service shall have been obtained.

MOTION to dismiss suit. Certified to the General Term for hearing in the first instance.

STATEMENT OF THE CASE.

This was an action brought to recover the unpaid balance of a decree of this Court.

The declaration was filed August 18, 1880, and summons returned, " Not found."

An alias summons was afterward issued on August 31, 1887, and returned " Non est ; " and again October 6, 1887, another, on which defendant's attorney accepted service October 6, 1887, the defendant then being in this District.

Instead of pleading to the declaration, defendant entered a special appearance and moved to dismiss the action, because, " at the time the same was brought, the defendant was not an inhabitant of, or found within, the District of Columbia, and said action was brought in violation of Section 767, R. S.D. C."

To this motion an affidavit was attached, stating " that at the time this action was brought the defendant was not an inhabitant of, or found within, the District of Columbia; that he left said District May 1, 1880, for the purpose of residing in Mexico for an indefinite period, and did not return to said District until July, 1887."

The motion was thereupon certified to the General Term for hearing in the first instance.

MESSRS. W. F. MATTINGLY and A. C. BRADLEY, for the motion.

MESSRS. EDWARDS & BARNARD, contra :

1. If there is anything whatever in the defendant's claim it should be presented by a plea to the jurisdiction, or to the disability of the defendant. (Rule 22.)

2. If...

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