WEST COAST REPORTER.

WHOLE NO. 110.

FEBRUARY 4, 1886.

VOL. IX. No. 1.

UNITED STATES CIRCUIT COURT, DISTRICT OF CALIFORNIA. WILLIAM SHARON v. SARAH ALTHEA HILL.

December 26, 1885.

PLEA IN ABATEMENT.-The defendant pleaded in abatement that the plaintiff was not a citizen of the state of Nevada, as he alleged, but of California, to which the plaintiff replied; when the plea was duly set down for hearing, without any evidence being taken or offered in support thereof, and overruled, and the defendant allowed a day within which to answer to the merits. Held, that the plea was properly disposed of, and that the question of the plaintiff's citizenship, for the purposes of the case, was thereby determined, unless a rehearing was asked for and allowed, and that the same defense could not be made again in the answer to the merits.

PRODUCTION AND INSPECTION OF PAPERS.-When a party to a suit for the annulment of an alleged false writing willfully refuses to produce the same and subrait it to the tests and examination necessary and convenient to enable the court to determine the question of its falsity, the legal inference is that such production and examination world tend to prove the falsity of the paper; and the same inference may be made from a like refusal to produce and similarly submit any other paper or item of evidence bearing on the ques

tion.

CONTRADICTION OF WITNESS.-The contradiction by one witness of the statement of another does not necessarily impeach or affect the credibility of either; for the contradiction may arise from mistake or other cause consistent with the integrity of both wit

Lesses.

CITIZENSHIP.-Citizenship is a status or condition, resulting from both act and intent; and no one can become a citizen of any state of the Union by merely intending to, nor by residence therein without or contrary to such intent; but the former is evidence more or less cogent, according to circumstances of the latter.

IDEM-FOURTEENTH AMENDMENT.-The first clause in section 1 of the fourteenth amendment is a restraint on the power of a state, so that it cannot exclude a citizen of the United States, resident therein, from the citizenship thereof; but such amendment does not have the effect to make such resident a citizen of such state against his will and intention.

ESTOPPEL BY ADJUDICATION.-Parties to a legal proceeding in which any question is directly involved and determined are estopped to re-litigate the same question in any other proceeding, whether commenced before or after the one in which such adjudication took place, or in the same or another forum. SAWYER, J., dubitante.

APPEAL FROM JUDGMENT IN CALIFORNIA.-By the law of California the judgment of a court is not final until the case has been heard on appeal or the time for taking one has expired; and such judgment cannot be used as an estoppel against either party thereto, pending such appeal, which suspends its operation for all purposes.

JUDGMENT OF STATE COURT IN NATIONAL COURT.-The law of the state in which a judgment is given furnishes the rule by which its effect and operation are determined in

the national courts.

CONSENT, WHEN NOT AN ESTOPPEL.-The mere consent that a case pending on a motion to remand may be remanded, or that it may be assigned to a particular judge for trial, according to the organization and order of proceeding in the court where it is pending,

No. 110-1

does not have the effect to estop the consenting party from litigating any question involved in such case in another proceeding.

RIGHT TO SUE IN NATIONAL COURTS.-Proceedings in a suit in the United States circuit court, will not be stayed, until a suit subsequently brought and pending in a state court between the same parties, involving some of the same questions, can be, finally, determined, for the purpose of giving effect to such final determination by way of estoppel. To do so, would be, in effect, to arbitrarily, deny the party entitled to sue in the circuit court, a remedy in that court.

CASE IN JUDGMENT.-In the fall of 1883 the defendant made a claim to be the wife of the plaintiff by virtue of an alleged secret declaration of marriage, purporting to have been signed by the parties on August 25, 1880, and a subsequent residence in a hotel belonging to the plaintiff and adjoining another in which he lived, from the latter part of September of the same year to the early part of December, 1881, and the receipt during this time of five hundred dollars a month from the plaintiff, after which, being expelled from her hotel by him, she lived about in San Francisco, and always went by her maiden name and passed for an unmarried woman; when on October 3, 1883, the plaintiff brought this suit to cancel and annul said alleged declaration as being false and forged, whereupon the defendant exhibited sundry letters purporting to be written to her by the plaintiff while she resided at his hotel, and addressed, "My Dear Wife." Held, on the testimony of the parties, the experts, and the face of the alleged declaration and letters, that the same are false and forged-the former having been written by the defendant over a simu. lated signature of the plaintiff's, and the latter being a tracing made by her of a letter in ink written by the plaintiff, substituting in the process the word “ Wife" in the address for "Miss Hill" or "Allie," and such substitution simply in the address of others written by him in pencil; and also that the contemporaneous conduct of the parties, and particularly that of the defendant, was altogether incompatible with the claim of marriage or the existence of any such declaration or letters, and therefore the same are false and forged.

Before SAWYER, Circuit Judge, and DEADY, District Judge.

Mr. W. H. Barnes, Mr. William M. Stewart, Mr. Oliver P. Evans, and Mr. H. I. Kowalsky, for the plaintiff.

Mr. George W. Tyler, Mr. W. B. Tyler, and Mr. David S. Terry, for the defendant.

By the Court, DEADY, J. This suit was commenced on October 3, 1883, to have a certain alleged declaration of marriage between the plaintiff and defendant declared to be false and fraudulent and delivered up to be canceled and annulled, and to enjoin the defendant from the use thereof.

It is alleged in the bill that the plaintiff is a citizen of Nevada and the defendant a citizen of California; that the plaintiff has never been the husband of any woman but one, who died in 1875, leaving three children, the issue of said marriage; and that he is possessed of a large fortune and has a large business and social connection; that the defendant is an unmarried woman of about thirty years of age, who has resided in the city of San Francisco for some years, and within two months past has publicly claimed and pretended to be the wife of the plaintiff, to whom she alleges she was duly married on August 25, 1880, in San Francisco, by means of a joint declaration of marriage, made in conformity to section 75 of the civil code of California; that said claim and pretense are wholly false and untrue and are made by the defendant for the purpose of obtaining credit and support at the expense of the plaintiff, and to obtain money from him, or in case of his death, from his heirs, to quiet the same; that the defendant now claims to have said declaration in her possession, but the plaintiff never saw or heard of it until within a month past, and is informed that it

is substantially as herein set forth; and that the same is false and forged and null and void, and ought, as against the plaintiff, to be so declared and delivered up to be canceled and annulled.

On December 3, 1883, the defendant demurred to the bill for want of equity, and on March 3, 1884, the court (Sawyer and Sabin, JJ.) gave judgment overruling the demurrer, on the ground that the instrument, if false or forged, might be hereafter used to maintain a false claim to an interest in the plaintiff's property at a distance of time when the proof of its fraudulent character was unattainable: 10 Saw.

48.

On April 24, 1884, the defendant pleaded in abatement of the suit: 1. Another suit pending in the superior court of the state, between the same parties, commenced on November 1, 1883, by the defendant for a divorce from a marriage with the plaintiff, by means of said declaration and the subsequent cohabitation of the parties thereto, until November, 1881, on the ground of adultery and desertion by the plaintiff; which suit was, on November 20, 1883, removed to this court on the petition of the plaintiff, and afterwards, on December 31, 1883, in pursuance of the stipulation of the parties, was remanded to said state court; and that said suit was then on trial therein on the question of whether the plaintiff and defendant are husband and wife, by reason. of said declaration and cohabitation; and 2. The court has no jurisdiction of the matters set forth in the bill herein, because the plaintiff is a resident and citizen of California.

To this the plaintiff, on May 5, 1884, replied that he ought not to be "barred" from the relief prayed for by reason of the matters set forth in the plea, and that it is not true that he is a citizen of California.

On October 16, 1884, the three months allowed by equity rule 69 for taking evidence on the issue made on the plea having expired, the cause was regularly brought on for hearing on the bill, plea, and replication, when the court (Sawyer, J.) gave judgment for the plaintiff, overruling the plea, with leave to the defendant to answer to the merits within thirty days.

The court, after calling attention to the fact that the plea was bad for duplicity, said, in substance-admitting the allegations concerning the pendency of the suit in the state court, it did not appear that they were for the same purpose or relief; and if they were, the plea was so far insufficient, because the two suits were pending in courts of different jurisdictions; and there being no proof in support of any allegation in the plea it was overruled: 10 Šaw. 394.

On December 30, 1884, the defendant answered the bill, denying that she is an unmarried woman; that the plaintiff is a citizen of Nevada, and averring that he is a citizen of California; that plaintiff never was the husband of any person but his deceased wife, and that he was unmarried at the filing of the bill; that defendant's claim to be the wife of the plaintiff is false or made for any purpose but to obtain recognition and support as his wife, and admitting that she had made

such claim for the past fifteen months; that defendant was never the wife of the plaintiff or that said declaration is null and void or false and forged; and avers that the parties were married on August 25, 1880, and that said declaration is valid and genuine.

The answer also contains what is styled therein "a further and separate answer and defense," to the effect that "the plaintiff ought not to be permitted to prosecute this suit," because on August 25, 1880, the parties by agreement became husband and wife, and "assumed towards each other that relation," but said marriage not being solemnized, as provided in section 70 of the civil code of California, the plaintiff and defendant on said day jointly made a declaration of marriage, as set forth in the bill, and thereafter, until November, 1881, cohabited together as husband and wife, when the plaintiff refused to recognize said marriage, and deserted the defendant; that on November 1, 1883, the defendant, as Sarah Althea Sharon, commenced an action against the plaintiff, in the superior court of San Francisco, for divorce, and that "the allegations of marriage in the complaint" therein " were principally founded upon said declaration of marriage."

The answer then sets forth in extenso the removal of such action to this court and the remanding of the same, in pursuance of the stipulation, as aforesaid, and then proceeds:

That by the stipulation of the parties such action was assigned to department two of said superior court for trial before a judge thereof, without a jury, and the same was so tried between March 10 and September 17, 1884; that thereafter, on December 24, 1884, said judge found and decided: 1. That the parties to such action were and had been since August 25, 1880, husband and wife; 2. That said declaration of marriage is "true and genuine," and was signed by the defendant therein, and that said parties had cohabited together as husband and wife; and 3. That the defendant had deserted the plaintiff, and the latter was entitled to a divorce and a division of the common property. Wherefore, it is averred that the question of the "genuineness" of said declaration, which is now sought to be tried in this suit, is the same question that was adjudged and determined in said superior court, and has, therefore, " become res adjudicata as between " the parties hereto.

On January 2, 1885, the general replication was filed to this answer, and on February 5 the defendant filed a supplemental answer alleging that since the filing of the former answer said superior court had filed its findings and decree, wherein it is adjudged that said declaration is a genuine contract of marriage between the parties hereto, and said parties thereby became husband and wife. Subsequently the defendant in Sharon v. Sharon duly took an appeal from the judgment therein and gave notice of a motion for a new trial, both of which proceedings are still pending and undetermined.

The evidence was taken orally before an examiner of the court during the period between February 5 and August 11, 1885, and covers one thousand seven hundred and thirty-one pages of legal-cap, written

with a type-writer. Besides this there are a large number of exhibits, consisting of enlarged drawings or tracings of the disputed writings and particular parts and peculiarities of them, and of the admitted writings of the parties, together with a large number of bank checks containing the plaintiff's signature and photographic copies of the declaration, five letters alleged to have been written by the plaintiff to the defendant, and known as the "Dear Wife" letters, a letter from the plaintiff to S. F. Thorn, dated October 16, 1880, four letters written by the defendant to the plaintiff during the years 1881 and 1882, and a letter to the plaintiff written in 1882, and signed "Miss Brackett," besides tracings and other writings of third persons.

The plaintiff having testified on the first day of the examination that the declaration was false and forged, an effort was then made by the plaintiff to have the defendant produce the same before the examiner for inspection by the expert witnesses of the plaintiff, which she evaded doing until February 25, when she was compelled to do so by the order of the court; and on March 16, in pursuance of a like order, she produced three of the five "Dear Wife" letters, known as exhibits 11, 13, and 37, which declaration and letters were examined by Dr. Piper for the plaintiff, and drawings made of the same with the aid of a microscope, from time to time thereafter, in the presence of the examiner, until March 19, when the defendant, in disregard of the order of the court, and on contumacious, frivolous, and contradictory pretexts refused to allow a particle of ink to be taken from either of them for examination by the expert under the microscope so as to ascertain the character and kind of the same, and particularly that used in writing the declaration which the defendant alleges was written in the plaintiff's office, or to produce said declaration or any of said five letters on the hearing in court for examination by the judges, except the ones known as exhibits 16 and 37, which were submitted to the court near the close of the hearing for the purpose of determining a comparatively immaterial question relative to the testimony of one of the expert witnesses of the plaintiff. Nor did she produce any of such writings before the examiner after March 19, although their production was thereafter repeatedly and specially demanded by the plaintiff for the inspection of others of his expert witnesses, and particularly to enable counsel effectually to cross-examine the witnesses of the defendant who swore to their genuineness from a private inspection of them, made out of court while they were in her exclusive possession and control: See 10 Saw. 635, 666.

In considering the question of the genuineness of these writings, weight must be given to the fact of the defendant's refusal to submit them to the tests and criticism which the law properly allows, as a means of ascertaining the truth thereabout: 2 Whart. Ev., sec. 1266, 1267. The defendant alleges in her answer that this declaration is genuine, and in her testimony she swears that the letters are of the same character, while on the hearing of the cause she refuses to submit them to the criticism of counsel and the inspection of the court. This