Opinion
January 10, 1964 —
February 4, 1964.
APPEAL from a judgment of the county court of Oneida county: JOHN R. DICKERSON, County Judge of Vilas county, Presiding. Affirmed.
For the appellant there was a brief by Albert J. Cirilli of Rhinelander, attorney, and Robert D. Martinson of Madison of counsel, and oral argument by Mr. Martinson.
For the respondent there was a brief by Korth, Rodd Korth of Rhinelander, and oral argument by Earl A. Korth, Sr.
Quo warranto action brought by plaintiff-appellant, Linarys, after the attorney general declined to act. The purpose of the action was to try defendant-respondent's title to the office of director of the Security State Bank of Minocqua, Wisconsin, on the theory that defendant was not a resident of the state of Wisconsin as required by sec. 221.08 (1), Stats.
Defendant was born and raised in Minocqua. In 1953 defendant's wife and children moved from Wisconsin to a home he purchased for them in Boulder, Colorado. Defendant's children attended the University of Colorado, paying resident tuition. Defendant's wife registered to vote in Colorado. One of his children died and was buried in Colorado. He owned jointly with his wife two automobiles which were registered in Colorado. The house occupied by his family in Colorado was owned jointly by defendant and his wife.
Defendant owned jointly with his wife a winterized lake cottage, an apartment building, and various other real estate in and around Minocqua. In addition to being a director of the bank, defendant was its president. During the winter months he operated a ski shop in Minocqua; during the summer months he sold real estate there. Respondent owned individually an automobile which was registered in Wisconsin. He was registered to vote in Minocqua and has always paid Wisconsin income taxes. Both his federal and state income-tax returns bear a Wisconsin address.
Since his family moved to Colorado in 1953, defendant has never spent more than four months out of any year in Colorado, in two-week intervals; the rest of his time has been spent in Wisconsin. The defendant has no business interests in the state of Colorado.
The case was submitted to the trial court on stipulation. The trial court held that the defendant was a resident of Wisconsin. From a judgment entered January 16, 1963, upholding defendant's title to the office of director of the bank, plaintiff appeals.
Defendant argues that the appeal was not timely. Judgment was entered on January 16, 1963. Notice of entry of judgment was given to plaintiff on March 21, 1963. Plaintiff filed his notice of appeal in the county court on July 11, 1963. Plaintiff is thus within the time prescribed by sec. 274.01, Stats., as that section existed prior to September 1, 1963. Defendant argues that sec. 324.04 governs this appeal as to time limit. However, this is a case of jurisdiction vested in the county court concurrent with the circuit court under sec. 253.11. In such a case sec. 274.01 applies rather than sec. 324.04. Oremus v. Wynhoff (1963), 19 Wis.2d 622, 121 N.W.2d 161.
On the facts presented, are we required to hold as a matter of law that respondent was not a resident of Wisconsin?
Both parties have assumed that the term "resident" in sec. 221.08 (1), Stats., is equivalent to "domicile." 9 op. Atty. Gen. (1920), 571, is in accord with this construction.
The elements of domicile are presence and an intention to remain. In this case the plaintiff challenges the defendant's intention to remain in the state of Wisconsin. Defendant's wife is a registered voter in Boulder, Colorado. His children attended the University of Colorado, paying resident tuition. These facts, along with defendant's ownership of various items of real and personal property in the state of Colorado, are sufficient to establish that the residence of defendant's wife and children was in Colorado. We are not concerned with his wife's residence or domicile except insofar as it may show the defendant's intention and affect his residence. The defendant husband, not the wife, is the director. The authority, rights, and duties of a director rest solely with him.
The plaintiff contends that Wisconsin has some statutory guides creating a presumption that a man's residence is the place where his family resides.
Sec. 6.51 (7) and (8), Stats., provides:
"(7) The place where a married man's family resides shall generally be considered and held to be his residence; but if it is a place of temporary establishment for his family, or for transient objects, it shall be otherwise.
"(8) If a married man has his family fixed in one place and does his business in another, the former shall be considered and held to be his residence."
Additional subdivisions of the same section, however, provide:
"(2) That place shall be considered and held to be the residence of a person in which his habitation is fixed, without any present intention of removing therefrom, and to which, whenever he is absent, he has the intention of returning.
"(3) A person shall not be considered or held to have lost his residence who shall leave his home and go into another state or county, town or ward of this state for temporary purposes merely, with an intention of returning.
(4) . . .
"(5) If a person remove to another state with an intention to make it his permanent residence, he shall be considered and held to have lost his residence in this state."
The presumption, if one exists under these statutes, may be rebutted. Milwaukee County v. State Dept. of Public Welfare (1955), 271 Wis. 219, 224, 72 N.W.2d 727.
Defendant has extensive business interests and real-estate holdings in Wisconsin. He has no business interests in Colorado. The only Colorado real estate he owns is the family residence. He is a registered voter in Minocqua, Wisconsin. His federal and state income-tax returns bear a Wisconsin address. Two thirds of his time is spent in the state of Wisconsin. Defendant was born and raised in this state; Wisconsin is his domicile of origin. The evidence adduced shows that defendant was a resident of Wisconsin. His intention and activities are such that he has not lost his Wisconsin residence.
By the Court. — Judgment affirmed.