Wheeler v. McEntie , 1 Cal. Dist. Ct. 231 ( 1857 )

Norton, J.

This case presents the constantly recurring question, what constitutes a residence ? The defendant has heretofore resided with Ms wife and children, and carried on business in Cohoes, in the State of New York. Having failed in business, he left there last March, and came to San Francisco, bringing with him a quantity of goods, but leaving his family at Cohoes. Upon his arrival here, in April last, he sent for his family, who arrived here on the 15th of July. In the mean time, on the 19th of June Ms goods were attached, on the ground ©f his being a non-resident of this State. He moves to discharge the attachment, on the ground that he was then a resident of this State.

In. all the definitions given of a legal residence, the controlling facte are; that it is a party’s fixed dwelling place, with the intention os Mb part to continue it as such. The fact and the intent, it is said, must concur.- But the mere presence of a party is not always sufficient ,t© constitute the fact. He must have established his abode. In the present case, the defendant was in this State; and probably did not intend to return personally to -Ms former residence, but Ms family were still living at Ms fprmer residence, which continued Ms residence until he acquired another. There is no evidence of a purpose to change Ms residence when he left Cohoes; no information of such intention was given to Ms family, and no directions for them to follow Mm, and at' the time tiiis attachment was issued, he had not engaged m any business here, or done any act appropriate to a residence, or-indicative of any intention to reside her©, at San Francisco, any more than at any other place in this State, or indeed elsewhere. His condition was that of a transient person, who, after Ms arrival here, Having determined to change his residence, was awaiting the arrival of his family, with the intention, upon their arrival, to fix Ms residence somewhere in the State of California, blit had not as yet become a legal resident of the State.

The motion to discharge the attachment must be demed.