Thе defendant applies for a new trial upon substantially the following grounds:
(1) Because the court refused to admit in evidence, in bar оf the action, the records and files of this court in a suit between the same parties, for the same cause, tried at the last prеceding term of court. (2) For error in ruling, under tlie plea in abatement, that the burden of proof is on defendant to show that plaintiff and dеfendant are citizens of the same state. (3) Yerdict contrary to the law and evidence.
With the plea of the general issue was filed a plea to the jurisdiction, according to the practice in the state courts, setting up that both parties were citizens of the same state, to-wit, the state of Michigan. A former action between these parties, for the same cause, was tried in this court at the last preceding term thereof. The declaration in that suit averred that the plaintiff therein was then a citizen of Indianа, and that the defendant was a municipal corporation and citizen of Michigan. To such declaration a plea to the jurisdiction, on the ground of the citizenship of the parties, was interposed, and the jury found in favor of the plea that the parties werе citizens of the same state. Judgment was ordered to be entered in accordance with the verdict of the jury. The present suit was сommenced some few months subsequent to the verdict and judgment in that action. The declaration avers that plaintiff is now a citizen of Wisconsin, and that the defendant is a citizen of Michigan. As before stated, the plea again raised the question of the citizenship оf the plaintiff. On the trial it appeared by the evidence, or was conceded, that the plaintiff was, at the time the cause of action accrued, a resident of this state; that he went to Indiana a short time before the first suit was begun; that after the trial and verdict in that action plaintiff left the state of Michigan and went to Wisconsin with his family, since which time he had continued to reside there. This suit was begun about five months subsequent to plaintiff’s removal to Wisconsin, and subsequent to the time of the trial of the former case. Notice is given in the pleadings that defendant
There are many decided cases holding that whenever the jurisdiction depends upon the citizenship of the parties, it is governed by their state or condition at the time of beginning their suit. Two early decisions, which have been followed by many others, especially in the circuit courts, are Mollan v. Torrance,
An inspection of the journal entry in thе former case discloses that there should be an amendment of the entry of judgment, as it fails to reflect correctly the only judgment which the court could have rendered, and which it did render. The order for judgment after a verdict is for judgment in accordance with the verdict. The verdict was that the plaintiff was not a citizen of the state of Indiana, but was of the state of Michigan, at the time of bringing his Buit. The judgment, as entered, is that the plaintiff take nothing by his suit, which is the usual form of a verdict on the merits. It should read that the
The second ground urged for a new trial was decided against the defendant by the supreme court of the United States in 1852. Sheppard v. Graves,
“ The plaintiff, having averred enough to show the jurisdiction of the court, and nothing having been adduced to impeach it, that jurisdiction remained as stated, and the plaintiff could lose nothing by adducing * * * no evidеnce at all in support of that which clearly existed, and which he, under the circumstances, could not be called on to sustain.” Pаge 513.
At page 510 it is said by the court:
“Although, in the courts of the United States, it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherеver jurisdiction shall bo averred in the pleadings, * * * it must be taken prima facie as existing; and * * * it is incumbent on him who would impeach that jurisdiction for causes dehors the рleading, to allege and prove such causes; that the necessity for the allegation, and the burden of sustaining it by proof, both rest upon the party taking the exception.”
It was, then, properly held in this case that the burden of proving that plaintiff did not reside in Wisconsin, but wаs a citizen of Michigan, rested on the defendant, who averred the fact to defeat the jurisdiction of the court.
The other ground fоr a new trial rests upon whether, under the evidence, it is manifest that the verdict of the jury is wrong. I confess to having had much doubt'whether the plаintiff was domiciled in good faith in Wisconsin; but the jury found he was, and it is not manifest to me that this finding is against the weight of the evidence, although I might be disposed to find the facts the other way. This is not sufficient to justify a reversal of the verdict. I cannot say it is clear that the jury were not justified in finding against thе defendant upon the issue presented by the plea in abatement.'
The motion is overruled, with the usual costs in favor of the plaintiff.