Olivieri v. Atkinson
| Decision Date | 27 February 1897 |
| Citation | 168 Mass. 28,46 N.E. 422 |
| Parties | OLIVIERI v. ATKINSON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles
F. Choate, Jr., for plaintiff.
Robert M. Morse, N. Sumner Myrick, and John Duff, for defendant Atkinson.
The defendant Atkinson obtained a discharge in insolvency, and relied upon it in defense to the plaintiff's claim. The discharge was dated June 28, 1895, and the first publication of notice was November 21, 1894. The plaintiff's action was brought June 24, 1893, for breach of a contract dated January 30, 1893. The trial was before a judge sitting without a jury in March, 1894, and he, on April 2, 1894, made a finding in favor of the plaintiff. Exceptions were taken by the defendant, which were not allowed till October 22, 1894, and which were never prosecuted further. In November, 1894, the defendant Atkinson filed his petition in insolvency. In February, 1895, the plaintiff moved to dismiss the exceptions, and to enter judgment. A hearing was had on this motion, and it was overruled; but not on the question raised by these exceptions. In February, 1896, the plaintiff filed a motion for judgment, and a hearing was had, at which no witness testified orally, but the testimony of the plaintiff as given at the two former hearings in the case, and of the defendant Atkinson, was read to the court; and a complete statement of all the evidence which was presented to the court is given in the bill of exceptions. At the close of the evidence, the defendant Atkinson asked the court to rule that, upon all the evidence, the plaintiff, on November 21 1894, was domiciled in this state. The court declined so to rule, made various findings of fact, and ordered judgment to be entered on the verdict for the plaintiff.
By Pub.St. c. 157, § 81, the defendant Atkinson was discharged from debts "due to any person resident therein [that is in this state] at the time of the first publication of the notice of the issuing of the warrant." The request for a ruling treats the word "domiciled" as equivalent to the statutory word "resident." Such is the usual, but not universal, meaning of the word as used in our statutes (Stoughton v. City of Cambridge, 165 Mass. 251, 43 N.E. 106); and such was held to be its meaning as used in the original statute of insolvency in this state (St.1838, c. 163, § 19), in McDaniel v. King, 5 Cush. 469. The question what constitutes domicile is mainly a question of fact, and the element of intention enters into it. Personal absence for a while does not necessarily change one's domicile, and personal presence in a place for a somewhat prolonged period does not necessarily establish domicile there. Viles v. City of Waltham, 157 Mass. 542, 32 N.E. 901; Borland v. Boston, 132 Mass. 89; Chicopee v. Whately, 6 Allen, 508; Harvard College v. Gore, 5 Pick. 370, 374. The question of domicile is often, as in the present case, rather a complex question, depending on a consideration of many different facts.
At the outset, we have to inquire what weight shall be given to the findings of the judge before whom the hearing was had. The case comes to us on exceptions, with a report of the evidence. This evidence as presented consisted of a report of the testimony of witnesses at two former hearings, but it appears that the first of these former hearings was before the same judge who sat in the final hearing, and it does not appear whether the other of the former hearings was before the same or a different judge. We therefore have the fact that the judge who allows the exceptions had at the trial of the merits of the original claim of the plaintiff heard a part of the testimony, and had seen or heard both the plaintiff and the defendant Atkinson face to face. Under this state of things, the evidence before the presiding judge can hardly be treated as merely documentary, since a part, at least, of the testimony read to him, had also been heard by him when it was taken. The question therefore before us is whether his findings of fact were warranted by the evidence, and whether his conclusion of law therefrom was right. Schendel v. Stevenson, 153 Mass. 351, 26 N.E. 689; Chase v. Hubbard, 153 Mass. 91, 26 N.E. 433. In a case where the evidence was merely documentary, and a ruling of law was made based thereon, and this court has before it all that was before the trial court, it is proper to re-examine the evidence, and determine if, on the whole, the judgment was right. Livingston v. Hammond, 162 Mass. 375, 38 N.E. 968.
An examination of the evidence leads to the conclusion that the findings were well warranted. There were certain general facts not in dispute. The plaintiff was a native of Ancona Italy, and devoted himself to music. He went from Ancona to Naples, for purposes of study; thence to Greece, as conductor of an orchestra; thence to Milan; thence to Havana; and finally, in 1881, to Paris, where he stayed till 1892. In the autumn of 1892 he came to New York, and remained there till he entered into the contract with the defendants. He was in Boston, performing...
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