Chariton Cnty. v. Moberly

• Decision Date: 28 February 1875
• Citation: 59 Mo. 238
• Parties: CHARITON COUNTY, Plaintiff in Error, v. WILLIAM E. MOBERLY, Defendant in Error.
• Court: Missouri Supreme Court

59 Mo. 238

CHARITON COUNTY, Plaintiff in Error,

v.WILLIAM E. MOBERLY, Defendant in Error.

Supreme Court of Missouri.

February Term, 1875.

Error to Chariton Circuit Court.

Shackleford, for Plaintiff in Error, cited in argument, Drake Att., §§ 59, 67; Adams vs. Abernathy, 37 Mo., 195; 1 Wend., 43; Roosevelt vs. Kellogg, 20 Johns., 208; 8 Wend., 140; 4 Wend., 603.

C. A. Winslow, for Defendant in Error, cited in argument Green vs. Beckwith, 38 Mo., 384; Exchange Bank vs. Cooper, 40 Mo., 169; Kingsland vs. Worsham, 15 Mo., 441; Ellington vs. Moore. 17 Mo., 424; Adams vs. Abernathy, 37 Mo., 196; 1 Am. Lead. Cas., [4 Ed.] 747-8, and notes; Bank, &c. vs. Balcom, 35 Conn., 351; Sto. Confl. L., § 47, [6 Ed.]; Harvard College vs. Gore, 5 Pick., 370.

HOUGH, Judge, delivered the opinion of the court.

It appears from the record in this cause, that on the 5th day of November, 1870, an amended petition was filed by the plaintiff, which, after setting forth the cause of action, concludes with the statement, “that at the time of the commencement of this action, to-wit: on the 24th day of April, A. D., 1869, defendant, W. E. Moberly was a non-resident of and did not reside in the State of Missouri.”

Annexed to this petition was an affidavit of the attorney of the county of Chariton, subscribed and sworn to on the 23rd day of November, 1869, which also stated that on the 24th day of April, 1869, defendant William E. Moberly was not a resident of the State.

A writ of attachment issued on the 5th day of November, 1870, which was levied on property of the defendant in Chariton county; an order of publication was made, published and proved, and at the May term, 1871, the defendant filed the statutory plea in abatement, denying that on the 24th day of April, 1869, he was a non-resident of the State.

The issue thus made was tried by the court without the aid of a jury, and the finding of the court being for the defendant, and it being admitted by the parties that the defendant had not been served with process, except by publication, and that at the time of the commencement of the action the defendant was not and had not since been a resident of Chariton county, the suit was dismissed for want of jurisdiction. A motion for a new trial was made, overruled and excepted to, and the case comes here by writ of error.

At the trial the deposition of the defendant was read in his own behalf, in which he stated that he had been a resident of the State of Missouri since 1839, and had been a resident of the city of St. Louis since 1864; that he had been in business in said city continually since 1865, and had a business office there, which he daily attended except during a portion of the summer of 1866; that from 1864 to 1872, he resided at various places in said city. He spent the summer of 1866 with his family at Perry Springs, Illinois. In 1867 he purchased and fitted up a dwelling in Alton, Illinois, as a summer residence, where his family remained during the year 1867, and during the summer of 1868. In March, 1869, he again removed his family from St. Louis to Alton, to spend the spring and summer of that year, but about the 15th of April his dwelling there was burned, and his family shortly afterwards removed to St. Louis. The place owned by him at Alton was only intended as a temporary or summer residence. On the 24th day of April, 1869, he had no temporary residence outside the State. Defendant also read the deposition of Charles O. Logan and Joseph T. Edwards, which tended to show a continuous residence of defendant in St. Louis, from the year 1864 to the year 1872.

No testimony was offered by the plaintiff. Plaintiff then asked the court to declare the law as follows: 1st. “That if the court finds from the evidence that the defendant, William E. Moberley, in the month of March, 1869, removed with his family from the city of St. Louis, in this State, to the State of Illinois, for the purpose of spending the summer in Alton, in said State of Illinois, and ceased during said time to keep house in the city of St. Louis, then the court declares the law to be, that during said summer residence the defendant was a non-resident of Missouri; and if the defendant with his family was thus residing in the State of Illinois on the 24th of April, 1869, at the date of issuing the attachment, the finding must be for the plaintiff on the plea in abatement, notwithstanding the court may believe that defendant had a place of business in St. Louis, during his summer residence in Illinois.” 2nd. “That the facts stated by defendant Moberly in his deposition prove that he was a non-resident of the State of Missouri on the 24th of April. 1869, within the provisions of the attachment law, in relation to attachment against the property of non-residents.” Which instructions were by the court refused, and the plaintiff excepted.

The court gave the following declarations of law at the instance of the defendant: “If the court sitting as a jury shall find from the evidence, that the defendant, William E. Moberly was a resident of the State of Missouri, so that an ordinary summons could have been served upon him on the 24th day of April, 1869, the day on which the attachment issued in this case, the...