Fitzgerald v. Arel

• Decision Date: 02 October 1883
• Citation: Fitzgerald v. Arel, 63 Iowa 104, 16 N.W. 712 (Iowa 1883)
• Parties: FITZGERALD v. AREL
• Court: Iowa Supreme Court

16 N.W. 712

63 Iowa 104

FITZGERALD v. AREL

Supreme Court of Iowa, Council Bluffs

October 2, 1883

Appeal from Palo Alto Circuit Court.

FRIDAY MARCH 21.

ACTION upon a due bill for $ 58.80, brought before a justice of the peace of Palo Alto county. The defendant moved to dismiss, on the ground that he was not a resident of Palo Alto county. He supported his motion by an affidavit made by himself, showing that he was a contractor upon a railroad which was in process of construction; that he had resided in Des Moines county for seven years; that he was absent from Des Moines county only for the purpose of constructing the railroad; and that he expected to return to Des Moines county as soon as the job upon which he was at work should be completed. The affidavit also showed that, while it was true that he had rented a house in Palo Alto county, in which he was living and keeping house with his family during the time that he was performing his contract in the construction of the railroad, his family would return with him to Des Moines county when his contract should be completed. The justice held the affidavit to be insufficient to show that the defendant was not a resident of Palo Alto county, and overruled the motion to dismiss, and rendered judgment for the plaintiff. Thereupon the defendant removed the case to the circuit court upon a writ of error and the circuit court reversed the judgment of the justice of the peace, and rendered judgment against the plaintiff for costs. The plaintiff appeals.

REVERSED.

John Jensvold, Jr., for appellant.

C. E Cohoon, for appellee.

OPINION

ADAMS, J.

Three questions are certified, but, as the determination of one of them will make a final disposition of the case, we deem it sufficient to determine that one. The question is in these words: "Upon the affidavit as to residence, is defendant a resident within, and subject to, the jurisdiction of the justice of the peace before whom the case was brought?"

The jurisdiction of justices of the peace, when not specially restricted, is co-extensive with their respective counties. Code, § 3507. This provision is qualified by the exception that their jurisdiction "does not embrace suits for the recovery of money against actual residents of any other county." In determining whether the justice of the peace in the case at bar had jurisdiction, we have to determine whether the defendant was an actual resident of any other county. He contends that he was an actual resident of Des Moines county. His theory that he was such resident is not based upon the fact that either he or his family was actually living in Des Moines county at that time, (for the affidavit shows that they were living in Palo Alto county,) but upon the fact that they intended, when defendant's contract should be completed, to return to Des Moines county. Whether the word "resident," as used in the statute in question, should have precisely the same meaning as in statutes providing for the settlement of paupers, or for the exercise of the right of suffrage, or for taxation, we need not determine. In the statute in question, the word "actual" is used to qualify the word "resident," and, besides, the manifest object of a statute may often be allowed some influence in its construction.

Proceeding, then, with our inquiry, we have to say that it does not necessarily follow that the defendant was an actual resident of Des Moines county because his domicile was in that county. Residence and domicile are not necessarily the same. 2 Kent's Com., 431, note; Love v. Cherry, 24 Iowa 204; Cohen v. Daniels, 25 Iowa 88. In the latter case, BECK, justice, said: "The distinction between the import of the terms residence and domicile is obvious. The first is used to indicate the place of dwelling, whether permanent or temporary; the second, to denote a fixed, permanent residence to which, when absent, one has the intention of returning." The distinction here noted is the same as is sometimes made between actual residence and legal residence or inhabitancy. In Crawford v. Wilson, 4 Barb. 522, the court said: "The actual residence is not always the legal residence or inhabitancy of a man. A foreign minister actually resides, and is personally present, at the court to which he is accredited, but his legal residence or inhabitancy and domicile are in his own country." See also, in this connection, Shelton v. Tiffin, 6 HOW 163, 12 L.Ed. 387, and 2 Parsons on Cont., 578. In our opinion, whenever a man buys or hires a house and sets up house-keeping with his family, with the design of remaining there until he has completed a certain job of work, he becomes an actual resident of that county within the meaning of the statute in question, and that, too, notwithstanding his domicile may be in another county, to which he intends to return upon the completion of the job. The object of the statute depriving justices of the peace of jurisdiction over actual non-residents of the county, was, doubtless, to secure persons against annoyance from suits where they could not conveniently remain to defend. But this reason can not be presumed to apply, where a person is sued in a county in which he has set up house-keeping with his family.

We are aware that it was said in Love v. Cherry, above cited, that the plaintiff might have two residences at the same time, a residence in Iowa and a residence in Texas, and it was held that she might be sued before a justice of the peace in the county of her residence in Iowa, while actually in Texas. It has been frequently said that a person may have more than one...