The Bismarck tribune., 1935-01-28
EDITORS NOTE:

ne presents the briefs for both the
Noodle qualification case. It does
full grasp of the legal points in
lted III evidence without shade of
the rule is to let the more tangible
domiciliary acts have the greater
weight IN determining the true
domicile. A man may spend but q
small portion Of his time at hi
oomicile, and yet not in the least i'm
pair its status as his true domicile
Long sojourn elsewhere, accompan-
led by ordinary acts, do not initiate
against it. In the case at bar the
sltus of occupation and of property
coupled with the intention to return
fixed the Ernest farm as appellant S
real domicile.'
The court makes this incidental
comment about the fact that the
plaintiff improperly voted In Fargo:
Had appellants vote in Fargo in
the spring Of 1887 been challenged
and refused, and the question Of his
right to SO vote been before the lower
court as the gravamen Of this case
it must be decided against him.
page 435).
Mccarthy VS.. Thornton. 80 N. D
55l; 145 NV 499.
Appeal from an order denying
change Of venue:
After constituting Section 74l8, Com
piled Laws of 1918, as to when a de-
mand for change of venue may be
filed, the court considered the prob
lem of whether the defendant was
in fact resident Of Williams coun-
ty. North Dakota. as to entitle him
to make a demand for change OF
venue in a suit brought in Stark
county. North Dakota. The only evi.
dence of the existence OF a domicile
in Williams county was an affidavit
by the defendant In which he merely
asserts he is a resident Of Williston
without giving any facts. The plain
tiff makes an affidavit to the effect
that he knows defendant and knows
that his donicile is in Iowa. and that
defendant travels much, selling
horses. There were also two letters
in evidence from bank cashiers In
Williston which indicated the writer
did not know of the defendant.
Affidavits Not Enough
The court held: I'VE are satisfied
that these affidavits do not conclu-
sively prove the residence Of the de.
fendant
If conclusion there is, 1t is to be
found in defendants and appellant
own affidavit, as he gives no facts
but merely states he was q resident
of Williston."
Since the defendant made the de-
mand for change Of venue he was re-
quired to show domicile and failed
TO sustain his burden Of proof.
Burke County VS.. Oakland, 56 NE
343; PIT NV 643.
Decision by Judge Burke In 1928.
This is an action to determine
residence of all INDECENT person un-
Ger Section $500. Compiled Laws OF
1913, and appealed from a decision
that the residence was in Thorsen
township.
The lower court found as a fact
that the INDECENT person had estab-
lished domicile in Thorsen township
by filing and perfecting a homestead
claim in that township and that sub.
sequently he rented his property ano
became transient, visiting through.
out Burke county, and also places IN
Montana.
The lower court was here sus.
tanned on the theory that the donll-
ellie was not lost until a new one was
acquired and that the INDECENT party
III this case had not established q
new domicilc.
1T lresidence) is changed under
Subdivision 7, OF Section IA, Compiled
Laws of 1913, by the union Of act and
intent; that is, moving from one
place of residence to another with
the intent to abandon the old resi-
dence and establish residence at q
new place, is in law a change Of
residence.
McEwen VS.. McEwen, so ND 662;
1877 NV 8Sc.
Cites Nuesslc Opinion
Opinion by Justice Nuessle in 1924
This is probate proceeding III
which the cross-petition filed set ou'
a will of later date than that orig
inally sought to be probated which
later will was executed In Canada
and there admitted to probate. The
county court ruled for the cross
petitioner and the district court re-
versed this ruling.
The jurisdiction Of the Canadian
court is challenged on the ground
that the decedent was q resident ol
North Dakota: the court specifical-
" states that the term residence here
implied domicile.
The facts were that when the first
will was made in North Dakota the
deceased was resident here ano
had perfected a homestead title ano
had resided in the same county ir
North Dakota for ten years or more
and until the fall OF 1918, going te
Canada in the fall Of 1918, where she
died in 1919: that upon going to Can
ada it was her intention to pay q
visit; that she left her household In
tact expressing an intention to re-
turn; that she was IS years OF age
at the time Of making this visit ant
just before she died was feeble II
mind and subject to hallucinations
The cross-petitioner asserts only thai
the residence at the time Of death
was Canada, as stated In her will
without any sustaining facts.
Held that the domicile was North
Dakota, the cross-petitioner failing te
uphold the burden Of proof which
was upon him to establish the resi-.
dence in Canada.
Mere Matter Of Form
1.-THE recitals as to residence are
largely matters Of form 80. The
expressions Of the scrivener rather
than of the testatrix. We think that
they are to be given no weight, un.
der the circumstances shown, In de.
termining her domicile. We are ol
the opinion that upon the whole rec
ord as made 1t clearly appears that
Mrs. H. at the time Of her death wa
domiciled In the state OF North Da-