Bowen v. Grand Trunk Ry. Co., 86 Vt. 483

Bowen v. Grand Trunk Ry. Co.

86 Vt. 483 | Vt. | 1913

Munson, J.

The declaration is for injuries sustained by the plaintiff at Sherbrooke, in Canada, while riding as a passenger on a train operated by one defendant over the track of the other. The declaration sets up the plaintiff as of Derby in this State. The cause was removed to the United States court *485on the' ground of diversity' of citizenship,’ and was afterwards remanded to the Orleans County court on the plaintiff’s affidavit that she was a citizen of Canada. The defendants thereupon filed a plea to the jurisdiction, alleging that the plaintiff was not a resident of this State at the time the cause of action accrued, but was then a resident and citizen of Sherbrooke in Canada, and has at all times since been a citizen of Sherbrooke; and that she came to reside, and is now residing, in this State solely for the purpose of bringing and maintaining this action. The plaintiff filed a general demurrer to this plea, and on hearing thereof the court overruled the demurrer, adjudged the plea sufficient, and held as matter of discretion that it would not take jurisdiction of the action as presented. The plaintiff thereupon asked and obtained leave to replead. Defendants excepted to the granting of this leave for want of jurisdiction in the court; and upon their motion the case was sent to this Court, before further proceedings, for a determination of the question thus presented. The plaintiff then excepted to the order passing the case to the Supreme Court, on the ground that if the court had no jurisdiction of the action it had no jurisdiction to order the case passed to the Supreme Court.

The question. presented by the defendants ’ exception is whether the court had jurisdiction to allow the plaintiff to re-plead after it had adjudged that the plea was sufficient. The argument is that in sustaining the plea the court deprived itself of jurisdiction and had no power to proceed further. “We consider the argument unsound. The overruling of the demurrer was not conclusive upon- the question of jurisdiction. ■ It was merely a judgment upon the legal sufficiency of the defendants’ claim as presented in the plea. The allegations of residence were admitted only for the purposes of the demurrer. Matters thus admitted have the standing of facts simply because the pleader has not denied them. 6 Ency. Plead. 335. A party demurring pauses in the course of his pleading to question the legal sufficiency of the matters alleged, if true. Gould Plead. 428. If the question of legal sufficiency is decided against him, he can still have his inquiry of fact, unless precluded by some rule of procedure. See County Court Rules p. 31. The court’s conclusion that the matters alleged were sufficient in law did not deprive it of the power to inquire whether .those matters were true in fact.

*486It is said that the court went beyond the adjudication, and in the exercise of its discretion refused to take jurisdiction, and that the plaintiff’s failure to except left this action conclusive against her. The statement of the exceptions is that the court held as matter of discretion that it would not take jurisdiction of the case- as presented. This .was not inconsistent with the action afterwards taken; 'but if treated as inconsistent it affords no basis for the defendants’ claim. ^ It is clear that such a. ruling, made by the court as an exercise of its discretion, could be withdrawn in its discretion; and this was done in permitting the plaintiff to replead. It was not necessary that the court formally withdraw its ruling.

Order allowing the plaintiff to replead affirmed and cause remanded.