70 F. 370 | U.S. Circuit Court for the District of Southern California | 1895
(after stating the facts). The grounds of this motion, as argued in the briefs of the respective parties, are: First, insufficiency of the evidence to justify the verdict; second, misconduct of defendant’s attorney in his argument to the jury. Among the grounds formally stated in the notice of motion is also that of newly-discovered evidence. This ground, however, is not urged by plaintiffs in their brief, and, I presume, for the reasons that the evidence referred to is largely cumulative, and besides there is no showing that any diligence was used to produce it upon the trial. ,
Under the first of the two grounds above stated, namely, insufficiency of the evidence to justify the verdict, plaintiffs contend that the diverse citizenship of the parties, or, more specifically, the citizenship of plaintiffs in Missouri, was prima facie established, and there was nothing in rebuttal, and therefore the verdict was against the strength or weight of the evidence. If the premises indicated are correct, the conclusion stated necessarily follows. The salient inquiry, therefore, is, did the plaintiffs establish, prima facie, this branch of their case, and was there an absence of rebutting testimony? Citizenship, it must be remembered, is a mixed question of law and fact, and not unfrequently complicated and difficult of solution. In such cases the testimony of a party, however honestly given, that his or her citizenship is in a certain state, such testimony
“There was no error in excluding (.lie questions propounded by the defendant at the time of tlio execution of the deed to the plaintiff. It was for tlio court to decide upon his intentions from his acts and conduct at the time. His secret, undisclosed intentions would he unavailing as against liis acts and declarations at (he time of the transaction.”
In another California case, where one of the questions involved was whether or not a. mining claim had been abandoned, and the claimant's intention was the controlling fact, he was permitted to testify what Ms intention was: hut Justice itoss, now the United States circuit judge for this circuit, delivering the opinion of the court, said:
“Abandonment is a question of intention, and of this intention the jury were to judge, and did judge, in view of all the facts and circumstances of the case. It is true, as slated in the brief of counsel for appellants, that Loathe testified at the trial that there was no intention by him or his co-locators to abandon the claims. But his testimony to that effect was not conclusive upon the jury. If that was so, it would follow' that all any party would have to do, in order to defeat the defense of abandonment, would be to say he did not intend to abandon. The intention, however, is to be derived, as already observed, from all tlio facts and circumstances of the case. Considering those facts and circumstances, the jury found for the defendants, and we cannot disturb the verdict on that ground.” Myers v. Spooner, 55 Cal. 260.
See, also, French v. Foley, 11 Fed. 801.
The case of Ennis v. Smith, 14 How. 400, cited in plaintiffs’ brief, does not bear upon the question of the weight which a party’s testimony, as to his intention, should receive, but simply holds that the prior declarations of tlio party are competent, “especially when made previous to the <;vent which gave rise to the suit.”
Clearly, plaintiffs did not have a prima facie case, uncontradicted by rebutting testimony. Many facts, testified to by Mrs. Allen herself, as 1 have already shown, fended to contradict her statement that she always purposed going back to Missouri. On this point the supreme court of the United Slates have said:
“Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontradicted by any one, should control the decision of the court; but that rule admits of many exceptions. There may he such an inherent improbability in the statements of a witness,” etc. “He may be contradicted by the facts he states as completely as by direct adverse testimony,” etc. Quock Ting v. U. S., 140 U. S. 501, 11 Sup. Ct. 733, 851.
Under the rule' here enunciated it is impossible to do otherwise than conclude that the verdict was not against the strength or weight of the evidence.