Brittenham v. Robinson
| Decision Date | 24 November 1897 |
| Docket Number | 2,249 |
| Citation | 48 N.E. 616,18 Ind.App. 502 |
| Parties | BRITTENHAM v. ROBINSON ET AL |
| Court | Indiana Appellate Court |
From the Wells Circuit Court.
Affirmed.
J. S Dailey, F C. Dailey and Abram Simmons, for appellant.
A. L Sharpe and C. E. Sturgis, for appellees.
Replevin brought by appellees against appellant, alleging in their complaint that they were the owners of certain articles of personal property described of the value of $ 400.00, and unlawfully detained by appellants, to their damage, etc. Defendants answered by general denial. The cause was submitted to the court for trial, without the intervention of a jury. There was a finding and judgment for the plaintiffs. Appellant filed his motion and written reasons, supported by affidavit, for a new trial. The court overruled said motion, and defendant excepted. From the judgment so rendered, appellant appeals, and specifies as error the overruling of his motion for a new trial. The interest claimed by appellee to the property in suit, was by virtue of a chattel mortgage executed by Charles S. Porter, in the name of Porter & McPherson, partners, and acknowledged by the former before a notary public on the 14th day of January, 1895, and recorded in the recorder's office of Wells county, Indiana, on the date of its execution.
Appellant relies upon three propositions for the reversal of the judgment: First, that the chattel mortgage does not give appellee a valid lien upon the property in controversy, for the reason that it was not recorded in the county where the mortgagors resided. Second, the exclusion of certain evidence offered by appellant. Third, the discovery of new and material evidence since the trial.
Section 6638, Burns' R. S. 1894 (4913, Horner's R. S. 1896) provides that "no assignment of goods by way of mortgage, shall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee and retained by him, unless such assignment or mortgage shall be acknowledged, as provided in cases of deeds of conveyance, and recorded in the recorder's office of the county where the mortgagor resides, within ten days after the execution thereof."
In the presentation of this question, the learned counsel for appellant do not lose sight of the long settled rule of appellate courts, that if there is any evidence on every material point essential to recovery that tends to support the finding and judgment of the trial court, the judgment will not be reversed upon the weight of the evidence; that it is only when there is no evidence to support the finding and judgment, that a cause will be reversed. Under the statute it was essential to plaintiff's recovery that the mortgagors, Porter & McPherson, should have been residents of Wells county at the date of the recording of the mortgage, and if there was evidence before the trial court, tending to prove such fact, the judgment of the lower court could not by this court, upon that ground alone, be disturbed. Appellants claim that there was no evidence that either Porter or McPherson was a resident of Wells county on the 14th of January, 1895; that they were mere adventurers in the oil fields of Indiana, from Pennsylvania, engaged in drilling wells; Porter alone was married, and at the date named his family was living in Pennsylvania. Many definitions of residence are found in the text books, and in the reported cases. Many are collected in Pedigo v. Grimes, 113 Ind. 148, 13 N.E 700, which case we cite. Judge Cooley says in his Constitutional Limitations, page 754 (5th ed.), that "a person's residence is the place of his domicile, or the place where his habitation is fixed without any present intention of removing therefrom." A man may acquire a domicile if he be personally present in a place and elect that as his home, even if he never design to remain there always, but design at the end of some short time to remove and acquire another. McCrary Elections, p. 496, sec. 38. In the case of Sanders v. Getchell, 76 Me. 158, it was held that bodily residence in a place, coupled with an intention to make such place a home, would establish a domicile or residence. We conclude that it is not necessary that there should be an intention to remain permanently at the chosen domicile. It is enough if it is for a time the home to the exclusion of other places. It follows that the residence of a person depends upon his acts and intention. This intention may be made to appear from his acts and statements. Looking to the record, we find that the mortgagors were described in the mortgage as residents of Wells county, Indiana, on the 14th of January, 1895, the day of its execution, and that on the same day it was recorded in the chattel mortgage record in the recorder's office of said county. In Brown v. Corbin, 121 Ind. 455, 23 N.E. 276, this was held sufficient prima facie evidence to show that the mortgage was recorded in the county where the mortgagor resided, and put upon the defendant the burden of showing that they did not reside in said county. The introduction of the mortgage made out prima facie the residence of the mortgagors in Wells county. Two witnesses, Scott and Sturgis, testified that at the time of the execution of the mortgage Porter said that he resided in Wells county. Porter himself testified that he made the foregoing statement in the presence of Scott and Sturgis, and at that time he resided in Wells county. Porter further testified that his family came to him at Bluffton, Wells county, Indiana, in March, 1895; that they commenced keeping house there in a rented house, and lived in Bluffton of said county from that time to and including the time of the trial; that he did all his business in Bluffton; that he had his checks cashed there; that it was his stopping place when not at work; that he staid in Bluffton whenever he could get a place to stay; that his wife and family were with him there; that up to the time of the trial he had not worked any place in Indiana outside of said county; that Bluffton was his home. One Bender testified that during the month of December, 1894, Porter and McPherson came to his place of business and told him they were going to live in Bluffton. The evidence discloses that Porter and McPherson came to Montpelier, Indiana, Blackford county, in the fall of 1894; that they remained there for a time and went to work in the Wells county oil fields; that Porter made Bluffton his home, working only in Wells county; that he stayed a few nights in Montpelier, but...
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