페이지 이미지
PDF
ePub

when proved, is prima facie evidence thereof.11 Where it was

Fed. 450, 453, the deposition of the plaintiff in another suit in a State court, where, in answer to the question "When did you first make Fairmont your home?" he had replied, "About the first of the year; was not conclusive against his affidavit that he was a registered voter, paid a poll-tax, and had a furnished house temporarily closed in another State, but that because of his connection with the building of a railroad he had temporarily resided in Fairmont with no intention of establishing his business there. In Thompson v. Ward, 199 Fed. 861, 863, the defendant was served within the State and his wife then stated that they intended to move to another State. He did not, when served, make any statement concerning his residence, but subequently filed an affidavit making a general statement that he resided and was a citizen of another State Two others, residents of another State, made affidavits that he had moved his household goods from the State where he was served prior to the commencement of the suit and that he was not a citizen of Iowa, but that his headquarters had been in the other State until recently, then he had been transferred to another place in the same State, where he was now temporarily located. It was proved that, at the last general election, he had voted in the State where he was served. Held that the evidence was insufficient to show that he was a citizen of any other State. In Davis V. Baltimore & O. R. R. Co. Fed. an action was brought for a personal injury to plaintiff's wife in West Virginia. Plaintiff when a citizen of Fed. Prac. Vol. I-11

Massachusetts accepted employment in West Virginia for no particular time. He lived there for about a year writing letters which showed that he considered the removal as more or less of an experiment. He never took his household goods there. It was Held that he had not changed his citizenship. In Sullivan v. Lloyd, 213 Fed. 275, defendant, who was not married and had no family, in order to avoid a suit by the plaintiff for breach of promise left his residence in Massachusetts had returned to Illinois where he was born and formerly lived. He intended in good faith to change his citizenship to Illinois and testified that he had come back there "for good." Before leaving, he gave directions to give up the apartment he had been occupying, to remove his furniture and store it in Rhode Island. This was done, the apartments were sublet and he did not return to them. He conveyed a printing business which he had been operating in Massachusetts to trustees from whom he had been receiving an income from another source and the plant was sold after the suit was brought. He remained in Illinois as a visitor at his brother's house with no residence or place of business there which he could call his own nine days before the suit was brought. It was Held that he had not become a citizen of Illinois. In Simpson v. Phillipsdale Paper Mills Co., 223 Fed. 64, a bachelor gave up his holdings in Massachusetts and moved his personal belongings to Rhode Island where he engaged lodging for the purpose of changing his citizenship so that he might Massachusetts company in

sue

a

found that plaintiff "is and was a resident of the State of Mis

the

Federal Courts. He spent comparatively little time in Rhode Island, but kept his office in Massachusetts and spent more nights there than in Rhode Island, although he had no regular lodgings in that State. He received his mail in his office in Massachusetts and paid therefrom his rent for his lodging in Rhode Island. He had his name taken off the list of voters in Massachusetts and asked to have it placed on the list in Rhode Island, but failed to make a personal application for this when told such application was required. His work compelled him to travel a large part of his time and he ordinarily registered from a city in Massachusetts. It was Held that he had not changed his citizenship.

11 Kenna v. Brockhaus, 5 Fed. 762; Eisele v. Oddie, 128 Fed. 941. In Gillert v. David, 235 U. S. 561, plaintiff, with his family removed from Michigan to Connecticut, where he had inherited property which he wished to sell should he be able to obtain what he thought it was worth and was engaged in litigation. He occupied a house which he owned in Connecticut. He left his desk with his brother-in-law in Michigan which he said was for the purposes of "holding his residence there." He told several people that he intended to live in Michigan and expressed his preference to that State, as a residence. He continued to pay membership dues to orders in Michigan to which he belonged. For ten years he was absent from Michigan except for a short time for a tem porary purpose. He took a letter from his church in Michigan to a church in Connecticut. He sold

[ocr errors]

his residence in Michigan and a large part of the furniture there in use. Held that he was a citizen of Connecticut. A declaration by a single man, that he intended to remain upon and run a ranch in one State, and that he intended to vote at a presidential election, although he subsequently said that he did not vote because he was not a citizen of that State; was held, sufficient, to establish his change of residence from another State that where the ranch was located, he having led “a sort of nomadic life. But for the last two or three years the evidence indicated very clearly, that San Antonio," a city in such State, was headquarters and the place of residence for business purposes or pleas ure." Winn v. Gilmer, 27 Fed. 817. In Jones v. Subera, 150 Fed. 462, a single man had transacted business and occupied rooms in a State for more than two years, and had descried himself in conveyances therein as a resident thereof; it was Held, that he was a citizen of that State; although he testified, that during all that time he had maintained a home in the State of his former citizenship and expected to return thereto when his business affairs in the other State were concluded. Reckling v. McKinstry, 185 Fed. 842, holding: that defendant had changed his citizenship to a State where he had lived for more than a year, under an express intention to make his home there, had engaged in business, leased business property, bought a home, joined a chamber of commerce, and paid the poll-tax, although in his affidavit he stated that he is not determined to make this his home or to become a

sissippi at the day of bringing this suit," it was held that this established that he was a citizen and resident of the State.12 But it was held in another case that a stipulation at the opening of the trial that plaintiff was a resident of a State other than that of which defendants were citizens was insufficient to establish the diversity of citizenship.13

Absence at school 14 or in a prison 15 or on duty in the army,16 is insufficient to constitute a change of citizenship.

It has been held that the acceptance and discharge of the duties of receiver of a railroad, within a State, does not constitute a change of citizenship.17 A State statute, providing that a non-resident cannot act as an administrator, does not make an administrator appointed therein a citizen of the State; but the jurisdiction of the District Court of the United States is determined by his actual citizenship, notwithstanding his appointment.18 A statement in a document signed by him, that a person is "of" a specified State, is evidence that he is a citizen of the same; 19 but does not estop him from proving the contrary.20

[ocr errors]

citizen of this state, but is seriously considering the advisability of moving back to his home in another State. In Philadelphia & R. Ry. Co. v. Skerman, C. C. A., 247 Fed. 269, the plaintiff was an alien and unmarried residing in Pennsylvania where he received a personal injury from the defendant, a corporation of that State. He testified that he moved to New York with the intention of there residing. He stayed two weeks in one county and then moved to another county in New York, where he stayed two weeks longer and began his suit. He then returned to the former county where he remained two weeks, and finding no work, went to New Jersey, whence he returned to the county where he sued about three weeks before trial. The verdict of the jury that he was a resident of New York was sustained. See also Gar

rett v. Mallard, C. C. A., 238 Fed.

335.

12 Reichman v. Harris, C. C. A., 252 Fed. 371.

13 Hogg v. Maxwell, C. C. A., 215 Fed. 360.

14 Chicago & N. W. R. Co. v. Ohle, 117 U. S. 123.

15 Guarantee Co. of North America v. First Nat. Bank (Virginia), 28 S. E. 909, absence while in a peniteniary is insufficient.

16 Stoker v. Leavenworth, 7 La. O. S. 390, holding that army officers, stationed on duty in a state, did not become citizens there.

17 Brisenden v. Chamberlain, 53 Fed. 307.

18 McDuffie v. Montgomery, 128 Fed. 105.

19 Rucker v. Bolles, C. C. A., 80 Fed. 504.

20 Reynolds v. Adden, 136 U. S.

Where a woman is deserted by her husband or leaves him for a sufficient cause and removes to another State with the intention of there residing, she becomes a citizen of the latter State and may on that ground invoke the Federal jurisdiction.21 Upon the insanity of a husband, and his confinement in an asylum, his wife becomes the head of the family, and may change the place of residence to another State, although her husband remains in confinement in the State where they formerly were citizens and domiciled.22

It has been said: that a minor cannot acquire a separate domicile from that of his father during the latter's life, except by the emancipation of the child and a complete surrender of the parental control as to the choice of the domicile.23 A minor who has reached the age of discretion and has no parents, grandparents or statutory guardian, may acquire a citizenship by domicile in any State for the purpose of acquiring the right to sue in the Federal courts.24"When a young man leaves the parental home, and strikes out into the world; goes to another State ; engages in business for a considerable length of time-the natural inference would be that he intended to build himself a new home, and domicile in the State where he had taken up his residence. So, likewise, if a man of years, overtaken by misfortune -perhaps reduced from luxury to penury and want-with no family ties to bind him, and the home of former years has passed from him, and from under his control, in the desperation of his situation abandons the State where these misfortunes have overtaken him, and remains away for a term of years-enters into the business of life with a residence in a neighboring State

348; Illinois Life Ins. Co. v. Shenehon, 109 Fed. 674.

21 Williamson v. Osenton, 232 U. S. 619; Town of Watertown V. Greaves, C. C. A., 112 Fed. 183; Gordon v. Yost, 140 Fed. 79; Fitch v. Huff, C. C. A., 218 Fed. 17. Contra, Poppenhauser v. India Rubber Comb Co., 14 Fed. 707; Hatch v. Ferguson, 57 Fed. 959; Nichols v. Nichols, 92 Fed. 1; Thompson v. Stalmann, 139 Fed. 93. See Comitis v. Parkerson, 56 Fed. 556, 22 L. R.

A. 148; Jennes v. Landes, 85 Fed. 801.

22 McKnight v. Dudley, C. C. A., 148 Fed. 204.

23 Woolridge v. McKenna, 8 Fed. 650; where the father, after the mother's death, had placed the child in question under the permanent care of her aunt at the latter's residence in another state.

24 Bjornquist v. Boston & A. R. Co., C. C. A., 250 Fed. 929.

the inference would naturally arise that he had no desire or intention of longer remaining in the locality of all his misfortunes." 25

When the permanent residence and citizenship of a party, at a date shortly before the beginning of the suit, is proved, the presumption is that the same continues until there is proof of a change.26 Evidence that an alien married in one of the United States does not justify the presumption that she lost her alienage when there is no proof of the citizenship of her husband.27 There is no presumption that the president of a corporation is a citizen of the State that chartered it.28 An intention to return unaccompanied by acts does not restore the former residence after it has been actually changed.29 It has been said that a mere floating intention of a return after accomplishing the object for which the change was made does not destroy the effect of acts which would otherwise accomplish a change of citizenship.30A man may reside in a State for an indefinite period of time without becoming a citizen, but the moment a man takes up his residence in a State different from that where he formerly was domiciled or was a citizen, with intent and purpose of making the new place of residence his future permanent home, that moment he loses his former domicile, and becomes domiciled in the new place; or, in other words, he ceases to be a citizen of the former place of residence, and becomes a citizen of the State of his adoption." 31

[blocks in formation]

Kemna v. Brockhaus, 5 Fed. 762, 763, 764, 766, 767, per Dyer, ) :

"The general rule upon the subjeet of citizenship is well settled. It is that, in order to give jurisdiction to the courts of the United States, the citizenship of the party must be founded on a change of domicile, and permanent residence in the State to which he may have removed from another State. Mere residence is prima facie evidence of such change, although when it is explained and shown to have been for temporary purposes, the presumption is destroyed. The inten

« 이전계속 »