Ludlow v. Szold

• Decision Date: 01 February 1894
• Citation: 90 Iowa 175,57 N.W. 676
• Parties: LUDLOW ET AL. v. SZOLD ET AL., (LEE ET AL., INTERVENERS.)
• Court: Iowa Supreme Court

90 Iowa 175

57 N.W. 676

LUDLOW ET AL.

v.SZOLD ET AL., (LEE ET AL., INTERVENERS.)

Supreme Court of Iowa.

Feb. 1, 1894.

Appeal from district court, Woodbury county; Scott M. Ladd, Judge.

On November 15, 1889, plaintiffs commenced this action, asking for an attachment, and to recover for goods sold and delivered. On the same day an attachment was issued to Webster county, and on that day levied upon certain chattels, the property of defendant J. Szold. Interveners filed their petitions, alleging that on November 16, 1889, and subsequent days, they severally brought actions in the district court of Webster county against J. Szold, and obtained judgments therein; that attachments were issued in said actions, which attachments were upon said 16th day of November levied upon the same property in Webster county on which plaintiffs' attachments had been levied. They allege that on November 15, 1889, defendants were not residents of Woodbury county, had no property therein subject to levy, were not served personally by plaintiffs in Woodbury county, and that, at the time interveners brought their several suits, J. Szold was a resident of Webster county, and had therein the property levied upon, and that plaintiffs reached no property by attachment in Woodbury county. Interveners ask that their liens upon the property attached be declared paramount and superior to the plaintiffs'. Plaintiffs answered these petitions, denying all allegations thereof, except as to the suits of interveners, the levies of their attachments, and the rendering of judgments. By agreement the issues, as to all the interveners, were tried together to the court. Judgment was rendered in favor of interveners, from which judgment plaintiffs appeal, assigning as errors that the judgment is contrary to law, and against the weight of the evidence.

Robinson, J., dissenting.

E. J. Stason and W. P. Briggs, for appellants.

S. M. Marsh, T. G. Henderson, J. S. Lothrop, and R. M. Dott, for appellees.

GIVEN, J.

1. The principal contention is as to the place of residence of the defendant J. Szold at the time this action was commenced, November 15, 1889. It was admitted on the trial that Szold had been a resident of, and doing business at, Sioux City, Woodbury county, for two years prior to October 28, 1889, at which time he was living in a rented house in said city; that on Saturday, October 26th, he made four chattel mortgages, due on demand, upon his stock of goods and household furniture, for an amount largely in excess of their value, and on the following Monday morning, October 28th, the mortgagees took possession of the stock, and closed the store, under said mortgages. The following facts are shown by the evidence, with but little, if any, conflict: On Monday morning, October 28th, Szold gave the key to the store to the agent of mortgagees, and inquired if anything more was wanted with him, and, on being told there was not, left the store, and was not seen there after that time. He was seen at his house on the evening of the 28th, and this was the last time he was seen in Woodbury county. Several officers who had writs to serve upon him on different days following the 28th failed to find him in Sioux City, after diligent search. Mrs. Szold was seen at the house where defendant had resided, several times within the two or three days following the 28th of October, after which she was not seen in that county, and the house was found to be vacant, and all the household goods removed. It also appears that, on October 23d or 24th, Szold was in Ft. Dodge, and called on a railroad agent there to see about some goods that he had shipped to Robert Grant, at Ft. Dodge, and made arrangements to stop a car of apples in transit, billed to him at Sioux City, and to turn them over to Grant, at Ft. Dodge. On November 10th, Szold registered at the Arlington Hotel in Ft. Dodge, in quired as to the rates, did not say how long he would remain, but said “he expected to go in a commission house.” He said he had been in the wholesale commission business in Sioux City, and had had hard luck, and had to sell out everything to square up, and only had two car loads of apples left; also, that he had sent his wife and family to her people in Peoria, Ill. He remained in Ft. Dodge until the morning of the 16th, when he and Grant left before breakfast; Szold saying that he was going east, but did not do so. Neither Grant nor Szold were seen after that time. On November 14th, when the sheriff of Webster county went to Grant's place to levy the first attachment against Szold, (one that is not in question,) he found Szold there, “seemingly running the business.” The sheriff took possession of the goods under the writ, and received one key to the store from Szold. Others testify to Szold's assisting Grant in his business during the time he remained. On the night of November 15th the sheriff received a warrant for the arrest of Szold, and on the morning of the 16th was unable to find him, or to learn the direction in which he and Grant had gone.

2. If, at the commencement of this action, November 15, 1889, J. Szold was a resident of Woodbury county, then the action was properly brought in that county, and plaintiffs' attachment to Webster county was authorized. Plaintiffs claim the law to be “that, where a residence is once established, it is presumed that the same continues until another residence is acquired.” They contend that it is not shown that Szold had acquired a new residence before the commencement of this action, and therefore his residence in Sioux City is presumed to have continued. This statement of the law has support in some of the cases, notably Church v. Crossman, 49 Iowa, 444, and Vanderpoel v. O'Hanlon, 53 Iowa, 246, 5 N. W. 119. In those cases it was sought to show abandonment of the old residence by showing that a new one had been acquired. The new not yet being acquired by a concurrence of the act and intention, the old was held to continue. They do not hold that abandonment may not be proven by other evidence than the fact of having gained another residence. In Nugent v. Bates, 51 Iowa, 77, 50 N. W. 76, the rule is stated thus: “When a residence is once acquired, it is presumed to continue until there is satisfactory evidence of abandonment.” In the recent case of Botna Val. State Bank v. Silver City Bank, (Iowa,) 54 N. W. 472, it is said: “The law is well settled that, when a residence is once established, it continues until there is an actual change of habitation, with an intention to make a new residence.” To hold that abandonment can only be established by evidence that a new residence has been acquired would render it impossible to show abandonment, in the cases of those whose whereabouts are unknown. While the fact that a new residence has been acquired is convincing evidence that the old has been abandoned, it is not the only evidence by which abandonment may be proven. The presumption of continued residence may be rebutted by any competent facts that show abandonment; that show “an actual change of habitation, with an intention to make a new residence.”

3. Interveners claim, not only that Szold had abandoned his residence in Sioux City prior to the commencement of this action, but also that he became a resident of Webster county. A distinction is recognized between legal and actual residence. In Hinds v. Hinds, 1 Iowa, 39; Love v. Cherry, 24 Iowa, 205; Bradley v. Fraser, 54 Iowa, 289, 6 N. W. 293, and other cases,--it is held that a person may be a legal resident of one place, and an actual resident of another, as when he goes from the place of his legal residence intending to return,--to reside temporarily at the other place. See, also, Code, § 3507, and Fitzgerald v. Arel, 63 Iowa, 105, 16 N. W. 712, and 18 N. W. 713. Legal residence, as distinguished from a mere temporary actual residence, is the residence contemplated in section 2580 of the Code, relating to the place of bringing actions aided by attachment. “The intention of the party, and his acts, are to be considered, in determining the question; and they must concur, in order to fix the fact of residence.” Cohen v. Daniels, 25 Iowa, 90. To enter the judgment which it did, the district court must have found, not only that Szold had ceased to be a resident of Woodbury county, but that he became a resident of Webster county. There is no evidence that prior to leaving Ft. Dodge he had become a nonresident of, or had even gone out of, the state. He had abandoned his residence in Sioux City. His family had gone. His property was taken from him, and his business was broken up. So far...