Carden v. Carden

• Decision Date: 17 November 1890
• Citation: 12 S.E. 197,107 N.C. 214
• Parties: CARDEN v. CARDEN.
• Court: North Carolina Supreme Court

12 S.E. 197

107 N.C. 214

CARDEN v. CARDEN.

Supreme Court of North Carolina

November 17, 1890

Appeal from superior court, Orange county; R. F. ARMFIELD, Judge.

Action by G. G. Carden against J. J. Carden, begun in August, 1888 before a justice of the peace, who issued an order of attachment on an affidavit that defendant was a non-resident. Plaintiff recovered judgment, and defendant appealed to the superior court, where a verdict was given for plaintiff. On defendant's motion, the order of attachment was vacated the court making the following finding and order: "This cause coming on upon motion of the defendant to dissolve and vacate the attachment, it is found by the court, upon the affidavits submitted, that the defendant, by the direction of the bishop of the Methodist Church, was assigned to the Baltimore conference as an itinerant preacher of said church that he remained in said conference from April, 1884, to March, 1889, intending to return to North Carolina; that the defendant always regarded and considered North Carolina as his home, and visited the same once a year during his absence, and generally oftener; that his absence was of longer duration than was intended or contemplated by the defendant; that defendant always intended to return to his home in North Carolina, and live in said state. Plaintiff asked for a jury to pass upon the residence or non-residence of defendant, which was refused by the court. Upon the foregoing facts, as found by the court, it is adjudged that the attachment be dissolved and vacated. Plaintiff appeals.

A Methodist preacher assigned to and living in a district outside his state is a nonresident, within the meaning of attachment laws, though he intends to return, and still claims a residence in the state, and visits it once or twice a year.

Graham & Winston, for appellant.

J. S. Manning, for appellee.

SHEPHERD J.

The single question presented by this appeal is whether, upon the facts found, the attachment should have been dissolved. We are unable to distinguish this case from that of Wheeler v. Cobb, 75 N.C. 21. It is there said that "without deciding who in law is a nonresident in other respects, but confining the decision to a construction of this statute, the conclusion is that where one voluntarily removes from this to another state for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence...