Engram v. Faircloth

• Decision Date: 13 July 1949
• Docket Number: 16716.
• Citation: 54 S.E.2d 598,205 Ga. 577
• Parties: ENGRAM et al. v. FAIRCLOTH.
• Court: Georgia Supreme Court

54 S.E.2d 598

205 Ga. 577

ENGRAM et al. v. FAIRCLOTH.

No. 16716.

Supreme Court of Georgia

July 13, 1949

R R. Jones, Dawson, for plaintiffs in error.

Leonard Farkas and Walter H. Burt, Albany, Edward McDonald, Cuthbert for defendant in error.

Syllabus Opinion by the Court

CANDLER Justice.

T. C Engram and Homer Lockett as citizens and taxpayers of Randolph County, Georgia, presented to the judge of the superior court an application for leave to file an information in the nature of a quo warranto to inquire into the right of T. E. Faircloth to hold the office and discharge the duties of sheriff in that county. That alleged that the respondent was ineligibile to hold the office in question because he had not resided in Randolph County for a period of two years next before his election; nor for two years next before his induction into office. In a properly verified response these allegations were positively denied. By consent of the parties all issues involved in the case, both of law and fact, were submitted to the court for determination without the intervention of a jury. The trial judge, after hearing the evidence, found in favor of the respondent and accordingly entered a final judgment. The relators excepted. Held:

1. As to a person sui juris, the matter of making a change in domicile or legal residence is one involving the exercise of volition and choice. Code, § 79-406; Stanfield v. Hursey, 36 Ga.App. 394, 136 S.E. 826; Bellamy v. Bellamy, 187 Ga. 804, 805, 2 S.E.2d 413, 419. And there is no merit in the contention here made that one in the military service has no right to change his legal residence. It is as competent for a soldier to abandon his domicile or residence and acquire a new one as it is for any other citizen to do so. 27 C. J. S., Divorce, § 76, p. 648; 19 C.J. § 39, p. 418; 28 C.J.S., Domicile, § 12, p. 28; Dicks v. Dicks, 177 Ga. 379, 383, 170 S.E. 245; Ex parte White, D.C., 228 F. 88; Remey v. Burlington Board of Education, 80 Iowa 470, 45 N.W. 899; Williams v. Saunders, 5 Cold., Tenn., 60; Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 583. In the Dicks case, supra, this court said [177 Ga. 379, 170 S.E. 247]: 'The Constitution, above quoted [Constitution of the United States, art. 1, sec. 8, par. 17], properly construed, does not altogether deny a soldier in our army of the right enjoyed by others of changing his domicile from one state to another state because he is stationed on a government reservation. He should not unnecessarily be thus discriminated against and limited in matters not connected with his status as a soldier.'

2. Where, as in this case, the trial judge is by consent of the parties made the trier of an issue of fact, his finding upon the question submitted will not be disturbed if there is any evidence to support it. Cunningham v. Schley, 41 Ga. 426; Carter v. State, 56 Ga. 463; Freidenburg & Company v. Jones, 63 Ga. 612. And in such cases where there is conflicting evidence that view of it which is most favorable to the prevailing party must be taken. City of McRae v. Folsom, 191 Ga. 272, 276, 11 S.E.2d 900.

3. The court was authorized to find from the evidence that the respondent had been a resident of Randolph County...