Conrad v. Nall

• Citation: 24 Mich. 275
• Court: Supreme Court of Michigan
• Decision Date: 11 January 1872
• Parties: Louis Conrad v. James Nall, Jr., and others

24 Mich. 275

Louis Conrad v. James Nall, Jr., and others

Supreme Court of Michigan

January 11, 1872

Heard January 10, 1872

Error to Wayne circuit.

This action was brought by James Nall, jr., Hubbard N. Duncklee and John H. Shepard, for the use and benefit of James Nall jr., against Louis Conrad. The trial was by jury, and the verdict and judgment for the plaintiffs. The defendant brings the cause to this court on writ of error.

Judgment affirmed, with costs.

H. M & W. Cheever, for plaintiff in error.

L. S Trowbridge and S. Larned, for defendant in error.

OPINION

Graves, J.

This was a suit in debt, commenced by defendants in error on June 5, 1871, in the circuit court for the county of Wayne, on a judgment recovered in the same court, on the 9th day of September, 1858.

The plaintiff in error, with his plea of the general issue, gave notice that he would insist on the statute of limitations as a defense to the action. On the trial, the plaintiffs proved the judgment set forth in the declaration, and gave evidence tending to prove that the defendant had been absent from, and resided out of, the state and in the state of Ohio for the space of about four years. The plaintiffs having rested, the defendant gave evidence tending to prove that for a considerable portion of the time when he was absent from the state, his family resided in the city of Detroit, where he had before resided; that he frequently returned to Detroit and remained several days at a time; that he went to Ohio without intending to make his home there, but with the purpose of remaining there for a time and then to return to Detroit, and that his wife was with him in Ohio less than two years when he returned to Detroit.

The evidence being closed, the court, on request of the plaintiffs' counsel, charged the jury:

First. That if they should find that the defendant had not resided in the state ten full years subsequent to the rendition of the judgment, the action was not barred, and the plaintiffs were entitled to recover.

Second. That if they found that the defendant became a resident of Ohio before the expiration of ten years from the recovery of the judgment, the statute did not begin to run again in his favor until his return to the state to reside.

Third. That to avail himself of the statute, the defendant was required to prove that, deducting all the times of his absence from, and residence out of, the state, he was within the state ten years after the recovery of the judgment and before the commencement of this suit.

Fourth. That to avail himself of his temporary returns, he was required to show that his return was actually known to the plaintiffs, or so open and notorious as connected with some locality that the plaintiffs, by using ordinary diligence, could have known of them.

The court added the following instruction at the instance of the defendant:

"Residence," within the meaning of Section 9, R. S. 1846, ch. 440, consists of this: When a person goes to a place intending to remain, and establishes there his domicile or permanent residence, and does so remain.

The following requests by the defendant were refused:

First. This action being based upon a judgment of this court, and not having been brought within ten years after the rendition of said judgment, the plaintiffs cannot...