Brown v. Boulden
| Decision Date | 01 January 1857 |
| Citation | 18 Tex. 431 |
| Parties | R. R. BROWN v. GREEN BOULDEN. |
| Court | Texas Supreme Court |
The word “domicile” in the statute which requires every inhabitant of this state to be sued in the county of his domicile, with certain exceptions, means “residence.” 5 Tex. 469;11 Tex. 465; 18 Tex. 433; 27 Tex. 276, 734;28 Tex. 751.
If a defendant is in the act of removing from one county to another, and his affairs are in such a state, that it cannot be certainly known in which county his residence in fact is, we think it may be held, consistently with the legislative intention, that the suit may be brought in either.
At all events, where, as in this case, he has had his residence in one county for a considerable time anterior to the bringing of the suit, that, for the purposes of the suit, ought to be held to be the place of his residence, until he has effected an actual and complete change of residence, from that to another county, not only by going to prepare a home for his family in the latter county, but by actually removing his family and principal effects from his former to his new home.
Error from Colorado. Tried below before Hon. James H. Bell.
Suit by plaintiff in error against defendant in error, on an account. The suit was instituted on the 17th day of November, 1854; the account was dated in 1853. Citation to Colorado county being returned not found, plaintiff amended by alleging that since the commencement of the suit, defendant had removed to Gonzales county, and prayed citation to that county. Plea of abatement under oath, that at the time of the commencement of this suit, he (the defendant) was and still is a resident of the county of Gonzales. Defendant also filed other pleas to the merits. The plea in abatement being first submitted to the jury, verdict and judgment thereon went for the defendant. The evidence was that defendant had been residing in Colorado county; but that at the date of the commencement of the suit, the defendant had determined to remove to Gonzales county, and had gone thither himself, with his negroes, except two, and wagon, to build or prepare houses for his family to move to in that county; did not take his wife, children, a negro woman and her child, nor any of his hogs or cattle, etc.; witness thought he took his horses; defendant left his wife, children and the negro woman and child at the residence of John S. Henry, defendant's son-in-law; Henry and defendant had resided on the same tract of land, cultivated the same field, owned the land jointly, but had lived in separate houses previous to the departure of defendant for Gonzales county as aforesaid.
The court instructed the jury, without request, as follows:
If the jury believe from the evidence that the defendant had left his home in Colorado county, and was engaged in preparing a home for his family in Gonzales county, before the institution of this suit, they will find that the defendant was not a resident of Colorado county at the institution of this suit.
If the jury believe from the evidence that the defendant had not left his home in Colorado county, and commenced making preparations in Gonzales county for the removal of his family, then you will find that defendant's residence was in Colorado county at the time of instituting this suit.
It is the legal right of everyone to be sued in the county of his domicile, subject to the exceptions which the law has established; and the jury will find upon the evidence without any reference to the merits of the plaintiff's demand.
G. W. Smith, for plaintiff in error, cited Pick. 370; 10 Id. 77; 5 Ves. 750, 788; 5 Mass. 370; Story on Confl. Laws, sec. 44, 48; Hart. Dig. art. 1717.
Darden, for defendant in error, cited Story on Confl. Laws, sec. 41, 42, 43, 44, 46; McIntyre v. Chappel, 4 Tex. 197.
It, not unfrequently, is a question of considerable nicety and difficulty to determine in which of two places a man's domicile really is. The statute also uses the word “inhabitant.” An inhabitant and resident mean the same thing. Burrill, L. D. tit. INHABITANT; Hart. Dig. art. 667. And the word “domicile” is evidently used in the statute in the sense of residence. But there may be a difference between a man's residence and his domicile. He may have his domicile in one place and still may have a residence in another; for although a man, for most purposes, can be said to have but one domicile, he may have several residences. A residence is generally...
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