93 F. 332 | U.S. Circuit Court for the District of Nevada | 1899
(orally). On the 21st of July, 1897, complainant commenced this-suit to foreclose a mortgage given by the
“That tlie defendant L. J. Hanchett has, or claims to have, some interest in or claim upon the said premises, or some part thereof, which claim or interest is unknown to this complainant, and which interest or claim is subsequent to and subject to the lien of this complainant’s mortgage.”
Thereafter, on the 2d day of October, 1897, the said L. J. Hanchett appeared, and interposed a demurrer to plaintiff’s complaint on several grounds, .which was overruled by the court. Blair v. Silver Peak Mines, 84 Fed. 737. On the 6th day of June, 1898, defendant Hanchett appeared and filed an answer to plaintiff’s hill of complaint, to which a replication was in due time filed by the complainant. Thereafter the cause, being at issue, was set for trial on the 21st of November, 1898. The Silver Peak Mines confessed judgment on the original hill September 13, 1897, and on the amended bill February 17, 1898. On the day set for trial, counsel for Hanchett failed to appear, and the case was heard upon the testimony previously taken by deposition. Judgment and decree of foreclosure were entered in favor of complainant for the sum of $573,978.71, that being the amount of principal and interest then due upon said bonds and mortgage. On December 5, 1898, defendant Hanchett filed a petition for rehearing, upon the following grounds:
“(1) That the proofs fail to establish that the complainant In this suit was, at the timo of the commencement of this action, a citizen of the state of New Jersey, although the allegation of the bill to that effect was denied in the answer of this defendant, and for that reason this court was without jurisdiction to enter any decree herein other than a decree dismissing said amended bill. (2) That the diverse citizenship of the parties to this suit was not proved, although put in issue by said answer, ,and for that reason this court was -without jurisdiction to enter the decree herein in complainant’s favor. (3) That said decree is erroneous because the alleged cause of action upon which this suit is founded was at the time of the commencement of this suit, as against this defendant, barred by limitation. (4) That said decree is erroneous because the alleged cause of action upon which this suit is founded was at the time of the commencement of this suit, as against this defendant, barred by time and laches, and by the rules of equity and equity practice, and because the same was and is stale, and not enforceable in equity. (5) That said decree is erroneous because tlie proofs herein show that the complainant is estopped by his ownership of said property, his actions, conduct, and representations, from enforcing said alleged mortgage against the said L. J. Hanchett. (6) That the said decree is erroneous because the evidence shows that said alleged mortgage is extinguished by lapse of time, as well under the laws ol’ the state of New York, where the same was made, as under the laws of this state, and under the general rules of equity. (7) That said decree is erroneous because the proofs are insufficient to prove the execution, delivery, and nonpayment of the alleged bonds and mortgages upon which said suit is founded. (8) That said decree is erroneous because upon the pleadings and proofs a decree should, in equity and good conscience, be entered herein in defendant’s favor, dismissing the said amended bill of complaint. And this defendant further respectfully, petitions your honors to set aside and vacate*334 said decree and grant a, rehearing upon the ground and for the reason that by reason of inadvertence, and surprise which ordinary prudence could not have guarded against, the hearing in this suit was had in his absence, and in the absence of all his solicitors and counsel; and because he was, for the reasons above stated, unrepresented at said hearing, and the case was not argued and presented on his behalf; and for the reason that the failure of his counsel to be present at said hearing resulted from their misapprehension, surprise, inadvertence, and excusable neglect, which, in equity and good conscience, should be relieved against upon this petition.”
Upon the oral argument the attention of counsel was called to the fact that if the court should be of opinion that a sufficient legal excuse was made to justify the court, on that ground alone, in granting a rehearing, it ought not to prevail unless defendant Hanchett could show that he had a good and meritorious defense to the suit, or, at least, that from the testimony filed herein it should appear upon argument that the court might reach a different result upon the merits of the case. With this general statement we proceed to an examination of the points discussed by counsel. ,
1. In so far as the grounds urged by defendant are based upon the statute of limitations, it will not again be argued, it having been fully discussed and decided in Blair v. Silver Peak Mines, supra.
2. It is claimed by the defendant that this court has no jurisdiction of this suit. Without stopping to examine whether the defendant has waived or abandoned his right to raise this question because he did not interpose a plea in abatement to the jurisdiction before filing his answer to the bill, as claimed by the complainant, the question of jurisdiction will be considered on its merits. In the bill of complaint it is alleged:
“That the complainant, John I. Blair, is now, and during all the time and times hereinafter mentioned was, and is, a resident and citizen of Blairstown, in the state of New Jersey, and is not a citizen or resident of the state of Nevada; * * * that L. J. Hanchett is a citizen and resident of the city of Sacramento, county of Sacramento, state of Oalifornia; * * * that this suit is of a civil nature, and that the matter or amount in dispute exceeds the sum or value of $10,000, exclusive of interest and costs; that the controversy herein is between citizens and residents of different states, to wit, between John I. Blair, a citizen and resident of Blairstown, state of New Jersey, and the Silver Peak Mines, a corporation duly organized and existing under and by virtue of the laws of the state of New York, * * * being a resident and citizen of said state of New York; that the property mentioned and referred to in the mortgage * * * is situated in and near the town of Silver Peak, county of Esmeralda, state of Nevada.”
The answer of L. J. Hanchett upon this point alleges:
“That he has no knowledge, information, or belief sufficient to enable him to answer the allegation of said amended bill, * * * and, placing his denial upon that ground, denies that the complainant at any of said times was, or now is, a resident or citizen of Blairstown, N. J., or a citizen or resident of New Jersey at all.”
The contention of the defendant Hanchett that, inasmuch as the complainant did not waive an answer under oath, and that, he having answered under oath that complainant is not a citizen of the state of New Jersey, the complainant must, under equity rule 41, produce two witnesses, or one witness and very strong circumstances corroborating him, in order to overthrow the allegation in defendant’s
In Shelton v. Tiffin, supra, it was held that an allegation of the citizenship of the par-ties must be made, but the proof of the citizenship, when denied, might be satisfactorily established, although the privileges and rights of a citizen may not be shown to have been claimed or exercised by the individual. The facts were that Shelton and wife became residents of Louisiana in 1840, more than two years before the commencement of the suit; that, since their residence commenced, they had been absent from the state only once, a short time, on a visit to a watering.place in Mississippi; that they resided the greater part of the time on the plantation which was in controversy, cultivating and improving it. Upon these facts the court said:
“Where an individual has resided in a state for a considerable time, being engaged in the prosecution of, business, lie may well be presumed to be a citizen of such state, unless the contrary appear. And this presumption is strengthened where the individual lives on a plantation, and cultivates it with a large force, as in the ease of Shelton, claiming and improving the property as his own. On a change of domicile from one state to another, citizenship may depend upon -the intention of the individual. But this intention .may be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage-is conclusive on the subject, but acquiring a right of suffrage, accompanied by acts which show a permanent location, unexplained, may be sufficient. The facts proved in this case authorize the conclusion that Shelton was a citizen of ¡Louisiana, within the act of congress, so as to give jurisdiction to the circuit court.”
In Anderson v. Watt, supra, cited and relied upon by the defendant, the court, in referring to tbe facts constituting citizenship, said:
“The place, where a person lives is taken to be his domicile until facts adduced establish the contrary; and a domicile, when acquired, is imesumed to continue until it is shown to have been changed.”
In Marks v. Marks, supra, there is an elaborate discussion, and a copious citation of authorities, concerning citizenship in many different phasea In the course of the opinion, Clark, J., said:
“Citizenship, in relation to the federal judiciary, must be of that kind which identifies the party with some particular state of which he is a member. Butler v. Farnsworth (1821) 4 Wash. C. C. 101, Fed. Cas. No. 2,240; Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289; Mitchell v. U. S., 21 Wall. 350. To constitute citizenship of a state in relation to the judiciary act requires: First, residence within such state; and, second, an intention that such residence shall be permanent- In this sense state citizenship means the same thing as domicile; in its general acceptation. The 'act of residence does not alone constitute the domicile of a party, but it is the fact of residence, accompanied by an intention of remaining, which constitutes domicile. The distinction between*337 domicile and mere residence may be shortly put as that between residence animo manendi and residence animo revertendi [citing cases]. Here residence may be for a transient purpose — as for business, — for a fixed period, or limited by an expected future event, upon the happening of which there is a purpose to return or remove. The two elements of residence, and the intention that such residence shall be permanent, must concur to- make citizenship.”
In Morris v. Gilmer, 129 U. S. 315, 328, 9 Sup. Ct. 293, the court held, upon the facts disclosed, that Gilmer was not a citizen of the state of Tennessee, as claimed in his complaint, hut had transferred Iiis residence from Alabama for the sole purpose of bringing the suit in the national court, thereby committing a fraud upon the law. But in the course of the opinion the court said:
“It is true, as contended by the defendant, that a citizen of the United States can instantly transfer his citizenship from one state to another (Cooper v. Galbraith, 3 Wash. C. C. 546, 554, Fed. Cas. No. 3,193), and that liis right to sue in the courts of the United States is none the less because liis change 'of domicile was induced by the purpose, whether avowed or not, of invoking, for the protection of his rights, the jurisdiction of a federal court. As said by Mr. Justice Story,, in Briggs v. French, 2 Sumn. 251, 256, Fed. Cas. No. 1,871, ‘if the new citizenship is really and truly acquired, his right to sue is a legitimate, constitutional,.and legal consequence, not to be impeached by the motive of his removal.’ Insurance Co. v. Broughton, 109 U. S. 121, 125, 3 Sup. Ct. 99: Jones v. League, 18 How. 76, 81. There must be an actual, not pretended, change of domicile; in other words, the removal must be ‘a real one, animo manendi, and not merely ostensible.’ Case v. Clarke, 5 Mason, 70, Fed. Cas. No. 2,490. The imention and the act must concur in order to effect such a change of domicile as constitutes a change of citizenship. In Ennis v. Smith, 14 How. 400, 423, it was said that ‘a removal which does not contemplate an absence from the former domicile for an indefinite and uncertain time is not a change of it,’ and that, while it was difficult to lay down any rule under which every instance of residence could be brought which may make a domicile of choice, ‘there must lie, to constitute it, actual residence in the place, with the intention that it is to be a principal and permanent residence.’ ”
3. Numerous other points have been discussed by counsel, and will be grouped together. It is deemed sufficient to state that it devolves upon Hanchett to establish the affirmative allegations in his answer by a preponderance of evidence. This, in my opinion, he has failed to do. He relies solely upon his answer, and the testimony offered by the complainant, and claims that the cross-examination of complainant’s witnesses proves his case, but he has failed to- convince the mind of the court that his contention is correct. On the' other hand, the court is of opinion that there are no facts proven in this case sufficient to establish any fraud or collusion between Blair and the Silver Peak Mines with reference to the Blair mortgage, sought to he foreclosed herein. There was no fraud in the execution of the mortgage. It was duly executed in New York, and properly recorded in Esmeralda county, state of Nevada, long prior to the execution of any agreement between Hanchett and the Silver Peak Mines, and existed of record at that date. It is not shown that the mortgage debt has ever been paid, or any part thereof, save and except the amounts credited in the judgment and decree of foreclosure herein. Blair is not shown to have been a party to the execution of any agreements that existed, or now exist, if any, between the corporation and Hanchett. It is not shown that Blair ever committed any act,by word or by deed, which would estop him from foreclosing the mort