Mann v. Taylor

¶1(concurring). — In my judgment, the instruction to the jury quoted in the eighth point of the foregoing opinion presents erroneous rules of law, and on that ground alone the judgment should be reversed. One of the grounds authorizing the issuing of an attachment is an allegation in the petition that defendant is “ a non-resident of the state.” Code, sec. 2951, subd. 2. The instruction referred to erroneously defines the words “resident” and “non-resident,” and presents erroneous rules for determining who is a “resident” and who is a “non-resident.” A resident of the state is one who resides in the state. “To reside” is to have a settled abode permanently or for a - time. A resident of the state is one who resides permanently or for a time in the state. There is not necessarily the idea of permanence connected with the signification of the words “reside” and “residence.” A resident may have a settled abode for a time, to be determined by circumstances. His residence may be temporary, for temporary purposes. He may retain his citizenship and his domicile in another state, and will be subject to the law of this state intended to protect the rights of residents, and to provide remedies against them. The definition of the term “residence,” found in the instruction, is very nearly a definition of the term “domicile.” The difficult task of defining the word “ domicile,” as it should be understood in the law, I need not attempt. Certain I am the instruction utterly fails to define correctly the words *364“resident” and “non-resident.” Under it, one who has a temporary residence in the state for the prosecution of business therein, which may continue for an undetermined time, is subject to the attachment of his property on the ground that he is a non-resident of the state. I am clear upon the point that the instruction is erroneous, and prejudicial to the defendant in so holding. Upon the subject involved in the question as to what constitutes residence, and who is to be regarded as a resident of the state in cases of the character of the one before us, see, in support of the views I have just expressed, the following decisions of this court, and the authorities therein cited: Cohen v. Daniels, 25 Iowa, 88; Fitzgerald v. Arel, 63 Iowa 104; Love v. Cherry, 24 Iowa, 204. Upon the grounds I have suggested, and no others,. I think the judgment of the district court ought to be reversed. While I concur in the conclusion announced in the opinion of the majority of the court, I do not concur in the reasoning and grounds upon which the conclusion is based. I think it safer to determine law actions in this court upon questions of law, rather than upon questions of fact, even though it may appear to us that the evidence is all one way.