Kehoe & Moseley, for respondent.
“Domicile of choice is entirely a question of residence and intent, or, as it is usually put, the factum and the animus. Both must concur in order that the domicile may be deemed established.” 14 Cyc. 838.
“A new domicile is not acquired until there is not only a fixed intention of establishing a permanent residence, but until also this intention has been carried out by actual residence there.” Boyd’s Executor v. Commonwealth (Ky.) Am. & Eng. Ann. Cas. 1914 B. 481.
“To effect a change of domicile there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence within another jurisdiction, coupled with the intention of making the last required residence a permanent home.” In re Moir’s Estate (Ill.) 69 N. E. 905; Hoit v. Hendee (Ill.) 93 N. E. 749, 21 Am. & Eng. Ann. Cas. 202; Stoddert v. Ward (Md.) roo Am. Dec. 86.
“The term ‘residence’ is synonymous with ‘domicile,’ which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention, a fixed and permanent home, a voting residence.” Driscoll v. Bender, 144 N. Y. Sup. 145; McCord v. Rosene, (Wash.) 80 Pac. 793; Hart v. Lindsay (N.H.) 43 Am. Dec. 597; Hairston v. Hairston (Miss.) 61 Am. Dec. 530; Newcomb’s Estate N. Y. 84 N. E. 950; People v. Turpin (Colo.) 33 L. R. A., N. S., 766 and note.
Robinson, C. J. At the general election in 1920 the parties to this suit were opposing candidates for the office of county commissioner of the Third commissioner district of Towner county. On the face of the returns Gerrard had 463 votes; Keller, 464. Gerrard contested the election. The court held and adjudged that each party had received an equal number of votes, and that to determine the matter the county auditor of Towner county should give due notice to both parties to attend at his office at a time to be appointed by him, and that he then and there proceed to publicly decide the election by lot. as provided by statute. Comp. Laws 1913, § 1010. Pursuant to the judgment the county auditor gave due notice to each party. with a copy of the judgment, and at the time and place stated in the notice each party appeared at the office of the county auditor and fairly drew lots. The lot fell to Andrew Gerrard, and he was given the certificate of election and installed as county commissioner. Then, after taking the
