The Bismarck tribune., 1935-01-28

the First National Bank of Buffalo
of which Mr.. Stoetling was a direc-
tor. The defense in the case was
that the property was homestead
and therefore exempt. The facts
concerning residence. shown to sup
port this contention were that the
defendants had lived in the house in
question from 1906 until about three
years before March, 1918, when the
house was moved from Expansion to
Hazen. The family lived In the house
until 1921 at Eazen, when they moved
to q farm near Expansion. During
1922, 1923 and 1924 the house was
occupied by tenant with one or
two Of the children Of the defend
ants family living in 1t while at
tending school at HAGEN.
Strong Circumstantial Proof
In 1922 both the husband and wife
registered with the assessor giving
| their residence as the ranch near
Expansion. They voted there in 1922
and at primary in 1924 As to this
portion Of the testimony the court in
cludes in Its opinion the following
dicta:
While registering and voting in a
particular place Is not conclusive It
is strong circumstantial proof Of resi-.
dence." Page 103.
The court held that the case must
be determined upon the acts OF de-
fendant which in the present in
stance constituted an estoppel in
pals. The homestead law may not
be construed to permit fraud after
recovering the consideration from the
first transaction. It would be q fraud
upon the first mortgage to allow the
defendant to defeat his security.
Graham vs.. Graham, 9 ND SIS: 81
NV A.
Action for divorce, with judgment
i for defendant.
The court specifically states they
will consider only the question OF
domicile and found as q fact that
the plaintiff was not a bona fide
resident as required by the statute
| governing divorce actions.
Plaintiff lived In Fargo two months
upon coming to the state, and
Wahpeton five months, Immediately
thereafter. The court stated that the
promptneSs, even 'prematureness" Of
bringing the action strongly tended
to show that the plaintiff merely in
tended to take advantage of the lib.
erality Of the North Dakota divorce
laws. Plaintiff testified as to her in
tent to make North Dakota her
permanent residence. Substantial
facts indicate that she had family
connections, household furniture and
books in the states of New York and
New Jersey. One witness from New
Jersey put in evidence plaintiffs de-
claration on leaving New Jersey for
North Dakota that the plaintiff
would be gone three or four months.
! Held. no residence was established
in North Dakota by the plaintiff.
Only Transient Sojourn
I'VE are constrained by the evil
dence to hold that plaintiffs sojourn
in this state has been transient mere
~ and for the purpose of establish
ing a fictitious residence for divorce
purposes only"
-. II one comes into this state
for the sole purpose Of acquiring q
pretended residence >. all the time
intending to remove from the state
and live elsewhere as soon as the
divorce is granted-such pretended
residence IS not sufficient to give the
courts Of this state jurisdiction to
grant divorce.
In any case where intent Is nee
essary to be ascertained, not alone
from the evidence of the party whose
intentions are being investigated, but
from all concomitant facts bearing
upon the question. The most direct
and positive statements Of intention
may be entirely overthrown and dis
proved by circumstances showing that
the statements are untrue.
THE existence Of mere purpose
to 60 elsewhere to live is not, in our
opinion, sufficient to defeat legal
residence In the place where the per-
son is actually domiciled."
Nelson VS.. Cass, q ND 357: LAG
NV 537.
This was an election contest hav-
Ing to do with the office Of mayor
Of Larimore. The lower court ruled
for the respondent or contestee. The
decision here vacates the judgment
OF the lower court and rules that the
election was no election" each can
didate receiving the same number Of
votes. The canvassing board gave
the complainant ll3 votes and the
respondent ll6 votes. The court here
held three votes were cast illegally
for the respondent because Of q fail
ure by the three voters to qualify as
residents Of Larimore.
| Mention Larimore Case
I. Geo. Hetherington was held to
have no voting residence in Lari-
more. The testimony was that he
lived in Larimore from 1892 until 1912
when he went to work on a farm out
Of town. He visited town about once
month and was absent at one time
for a three months period. When
he lived in Larimore he resided at
the Salvation Army barracks. and
part Of his personal effects were left
with the son at the barracks when
he worked on the farm. He had
farmed at Larimore since 1893:
I'VE grant there is much force to
the argument made by counsel fog
appellant to show that the trial court
erred; but We think the evidence is
sufficient to sustain the findings y
tThat Hetherington was without resi-
dence.) Pages 375-76.
2. The vote Of one Mcintyre was
held illegal because he did not have
q residence in Larimore. The facts
were that prior to 1912, he had lived
four or five years at Larimore, but
since 1912 he had been q transient
laborer. A small portion Of his cloth
ing was kept at boarding house II,
Larimore in which he had lived a.
an accommodation to him.
HE was . farm laborer and We
think 1t apparent that he did not
have q permanent residence In Lari-
more, and that he carried his resi-
dence with him so far as the intent
covers. It Is, Of course. easy for this
class Of man to testify to his in
tent. and make it apply to any place
where he stops for either q short
or long period" (542)