Buckland v. Goddard

Mr. Chief Justice Walker

delivered the opinion of the Court:

This was an attachment, commenced in the Circuit Court of Fayette county. Plaintiff in error entered a motion, based on an affidavit that defendant in error was a non-resident of the State when the suit was brought, to dismiss the suit. It was overruled, and pleas in bar were filed, and a trial was had, resulting in a judgment in favor of defendant in error. And it is insisted, that the court erred in overruling the motion. The bill of exceptions discloses the fact that a counter affidavit was filed, in which it was alleged, on the information and belief of the affiant, that defendant in error was then, and had been for some time previous, a resident of the State ; that he had corresponded with him at Chicago, where he then lived, and that defendant informed affiant that he was a resident of Illinois. It will be observed that it is not stated that he was a resident of the State at the time suit was commenced, nor can it be inferred from the affidavit.

If this was all of the evidence heard by the court on the trial of the motion, the suit should have been dismissed. Casey v. Horton, post, page 234. But the bill of exceptions failed to state that no other evidence was heard. The presumption must be indulged, that the court has decided correctly, until the presumption is rebutted. For aught that appears, there may have been an abundance of evidence to establish the fact that defendant resided in the State at the time the suit was instituted, and the bill of exceptions failing to state that it contains all of the evidence, it must be presumed that there was other evidence. The judgment of the court below must therefore be affirmed.

Judgment affirmed.