Tromans v. Mahlman , 111 Cal. 646 ( 1896 )

Harrison, J.

The facts in this case are set forth in the opinion given upon a former appeal. (Tromans v. Mahlman, 92 Cal. 1.) It was then held that the evidence was insufficient to show an actual residence upon the premises at the time of filing the declaration of homestead, and, consequently, that the premises were not impressed with the attributes of a homestead; and the case was remanded for a new trial. Upon that trial, from which the present appeal is taken, the evidence before the court was substantially the same as upon the former trial, and the decision of the court thereon in favor of the plaintiff was by necessary implication a decision that the evidence did not show such actual residence on the premises; and, under the decision of this court upon the former appeal, the superior court was fully justified in making this finding.

The only respect in which it is claimed by the appellants that the evidence herein differed from that at the former trial to such an extent as to authorize a different conclusion is that Mrs. Mahlman testified that at the time she went to the premises on the 21st of August, 1883, it was her intention to remain there and occupy the house continuously, but that by reason of supervening circumstances she was compelled to return to San Francisco the next day after the declaration of homestead was .filed. Whether she did in fact actually reside on the premises at the time the declaration was filed was a question of fact to be determined by the court from the evidence before it. The physical fact of her occupancy, as well as the intention with which she occupied the house, were both elements to be considered in determining actual residence, and the court was not bound to accept her statement that she intended to reside thereon as conclusive, if other facts to which she testified were inconsistent with such intention. Whatever inconsistency there was between these facts and her statement of her intention presented merely a conflict of evidence, on which the decision of the trial court was final. Its decision upon this conflict of evidence that she did not reside there is conclusive Upon this court. ,

The order is affirmed.

Garoutte, J., and Van Fleet, J., concurred.