Opinion
No. 34924.
April 13, 1942.
1. ATTACHMENT.
One who resides in state becomes a "nonresident" thereof, within statute authorizing attachment against nonresidents, when he removes therefrom intending to remain out permanently or for a definite period of time, although he frequently visits the state for short intervals of time (Code 1930, sec. 174).
2. ATTACHMENT.
Where brakeman's run was from Jackson, Tenn., to Louisville, Miss., passing through New Albany, Miss., once each day six days weekly, train remaining there about an hour daily for switching purposes, and brakeman rented his house in New Albany where he had been living and rented house in Jackson with purpose of remaining there for an indefinite period brakeman was a "nonresident" of Mississippi within statute authorizing attachment against nonresidents (Code 1930, sec. 174).
APPEAL from chancery court, Union county, HON. JAMES A. FINLEY, Chancellor.
Hugh N. Clayton, of New Albany, for appellant.
The appellee was a nonresident within the meaning of section 173 of the 1930 Code of Mississippi.
Aetna Insurance Co. v. Robertson, 126 Miss. 387, 88 So. 883; Clark v. L. N.R.R. Co., 158 Miss. 287, 130 So. 302; Southern Motor Express Co. v. Magee Truck Lines, 181 Miss. 223, 177 So. 653; Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So.2d 844.
The appellee was an absent debtor within the meaning of Section 173 of the 1930 Code of Mississippi.
Montgomery v. Cleveland, 134 Miss. 132, 98 So. 111.
Smallwood Darden, of New Albany, for appellee.
The appellee was not at the time of the institution of this suit a nonresident absent or absconding debtor within the meaning of Section 173 of the Code of 1930.
Miss. Chancery Practice by Griffith, par. 485; Brown v. Crane, 69 Miss. 678, 13 So. 855; Alston v. Newcomer, 42 Miss. 186; Collier v. Chamblee, 136 Miss. 257, 101 So. 372; Dent v. Jones, 50 Miss. 265.
This is an attachment in chancery brought by the appellant against the appellee under section 174, Code of 1930, in which the bill of complaint alleges that the appellee is a nonresident of the state, and that the Gulf, Mobile Ohio Railroad Company is indebted to him. It also alleges that the appellee owns real property in this state. Process was served on the railroad company, and an attachment was levied on the real property. The appellee appeared and challenged the validity of the attachment, by moving to quash the process on the railroad company and the attachment of the real property, alleging that he was a resident of the state, and therefore not subject to the provisions of section 174 of the Code.
The evidence on this motion discloses that appellee is, and has for a number of years been employed by the Gulf, Mobile Ohio Railroad Company as a brakeman on its trains; that on and prior to December 31, 1940, he and his wife lived in a residence owned by them in New Albany, Union County, Mississippi; but that a few days thereafter they moved to Jackson, Tennessee, where he could more conveniently live and discharge the duties of his employment by the railroad company as a brakeman.
In April, 1941, they rented the house in which they had been living in New Albany to another, and rented a house in Jackson, Tennessee, into which they moved with all their household belongings, and have continued to live therein. The facts and circumstances in the record indicate that the appellee's residence in Jackson, Tennessee, is to be, if not permanent, at least for an indefinite period of time. The appellee's "run" as brakeman for the railroad company is from Jackson, Tennessee, to Louisville, Mississippi, and return, passing through New Albany generally once each day for six days in each week. His train, which is one carrying freight, usually remains in New Albany for about an hour each day for switching purposes. On this evidence the court below held that the appellee was not a nonresident within the meaning of the statute, granted the prayer of the appellee's motion, and an appeal to this court to settle the principles of the case.
This motion to quash should have been overruled. One who resides in this state becomes a nonresident thereof within the meaning of section 174, Code of 1930, when he removes therefrom, intending to remain out permanently, or for a definite period of time, although he frequently and continuously visits the state and remains there for short intervals of time. Grif. Chan. Prac., section 485, and the decisions of this court there cited.
The appellee not only does not reside in Mississippi, but has acquired a fixed residence in Tennessee, with the evident purpose of remaining there for an indefinite period. Consequently, he is now a resident of that state. 7 C.J.S., Attachment, section 33.
Reversed and remanded.