
    Edward Fitzgerald vs. J. Royal McMurran.
    Submitted on briefs May 9, 1894.
    Affirmed May 24, 1894.
    No. 8743.
    Finding of fact upon affidavits sustained.
    A finding, on motion to vacate an attachment, that defendant, notwithstanding his absence from this state, was still a resident, sustained.
    Appeal by plaintiff, Edward Fitzgerald, from an order of the District Court of Bamsey County, John W. Willis, J., made November 18, 1893, vacating a wait of attachment.
    Plaintiff commenced this action against defendant, J. Boyal McMurran, upon his note for $1,000 and interest dated December 22, 1892, due nine months thereafter. On affidavit that defendant was not a resident of the state plaintiff procured a writ of attachment under which the sheriff of Bamsey County on October 7, 1893, seized the defendant’s real estate. The summons was served by publication. On November 11, 1893, the defendant moved the court on affidavits showing him to be a resident of the state, temporarily absent on business, to vacate the attachment. The court granted the motion and plaintiff appeals.
    
      Horton & Denegre, for appellant,
    cited Lawson v. Adlard, 46 Minn. 243; Chase v. Ninth Nat. Bank, 56 Pa. St. 355; Ludlow v. Ramsey, 11 Wall. 581; Keller v. Carr, 40 Minn. 428.
    
      Jones & McMurran, for respondent,
    cited Jones v. Swank, 51 Minn. 285; Keller v. Carr, 40 Minn. 428; Hurlbut v. Seeley, 11 How. Pr. 507; Savage v. Scott, 45 Ia. 130; Chariton County v. Moberly, 59 Mo. 238.
   Gilfillan, C. J.

Au attachment was issued against defendant’s property, on the ground that, as alleged, he was a nonresident. It was vacated upon affidavits from which the court below must have found that he was a resident. It is unnecessary to say more of the affidavits than that defendant was undoubtedly a resident up to January, 1893, and that from them the court might well conclude that at that time he left the state for a temporary business purpose, and without intending to abandon his residence here, and without intending to acquire or acquiring a residence elsewhere, and that, notwithstanding his absence, he continued a resident here.

Order affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 199.)  