155 F. 491 | U.S. Circuit Court for the District of Western Pennsylvania | 1907
In the bill filed in this case the plaintiff claims to be a citizen of the state of Ohio, and alleges the defendants are citizens of the state of Pennsylvania; and to that bill Frank P. Howley has filed a plea to the jurisdiction, stating therein that the
This second ground of objection to the jurisdiction of this court may be disposed of, first. It has been repeatedly determined that the pendency of another action between the same parties for the same cause or causes in the state courts is no bar to- a similar action in the courts of the United States, as they are regarded as foreign courts for that purpose.
Upon the question of citizenship considerable testimony has been taken, which may be briefly summarizéd as follows: The plaintiff was born and raised in Beaver county, Pa., and while for a time prior to his marriage he resided in another state, from his marriage in 1889 up to March, 1905, it is admitted his residence was in Beaver, Beaver county, Pa. Up to about the latter date he was engaged in the building and contracting business, but then became interested in the Old Colony Oil Company and the Shawnee Oil Corporation; the former now conducting a contracting business in the line of drilling wells and the latter an oil producing company. Of both these companies the plaintiff is superintendent and manager, and the prosecution of his work for the former company naturally requires him to spend most of his time where their work lies, and for the latter company he has charge of their leases, which embrace territory in western Pennsylvania, eastern Ohio, and West Virginia. Plaintiff’s family consists of himself, wife, and one son, now grown and in employment. In March, 1905, he claims to have left Beaver, and resided until the spring of 1906 in the western part of that county, back of East Liverpool, in the neighborhood of Smith’s Ferry, and since March, 1906, he alleges that his residence has been East Liverpool, Ohio. He says his work during that period and for some time to come has been and will be in the neighborhood of East Liverpool, within a distance of some six miles, and that that is the most-convenient point for him to his business. In East Liverpool he has quarters in a lodging house known as the “Hotel Hollenden,” occupying there a room on the third floor, which he uses.both for his bedroom and his office... He takes his meals wherever he happens to be. That hotel furnishes no meals. During the time he has been at East Liverpool and in the neighborhood of Smith’s Ferry his family has continued to. reside in the town of Beaver, where his mother also resides. In the fall of 1905, through negotiations conducted in part by himself, his wife purchased a lot in Beaver and subsequently erected thereon a dwelling house, completing it in the late summer or early fall of 1906, which she and her son háve since occupied as their home. There is no disagreement or lack of harmony in the family and no separation.- of husband and wife. The plaintiff states that he hopes before long to be able to have his family with him' in East Livérpool, and that so long ago as last fall he spoke to a real estate dealer in Beaver about trying to sell his wife’s, property- there. He- accounts for his wife and son remaining therej by, stating that his son is in employment there,- or in that neighborhood, and that his wife stays there in order that-he may live at home with h,er;.as. well as because.of their ownership of that property.
The question for determination, then, is whether the plaintiff is a resident of Ohio or Pennsylvania, and under the pleadings in the case the burden of showing that he is not a resident of the former state rests upon the defendant. “To effect a change of citizenship from one state to another there must be an actual removal, an actual change of domicile, with a bona fide intention of abandoning the former place of residence and establishing a new one, and the acts of the party must correspond with such purpose.” Kemna v. Brockhaus et al. (C. C.) 5 Fed. 762. “Domicile of origin must be presumed to continue until another sole domicile has been acquired by actual residence, coupled with the intention of abandoning the domicile of origin.” Price v. Price, 156 Pa. 617, 27 Atl. 291. Applying these principles to the case in hand, and having regard to the employment of the plaintiff, the situation of his family, and all the facts and circumstances surrounding his and their acts during the past two years, I am impressed with the conviction that his real residence and citizenship are in Pennsylvania, and that his situation is rather that of one who purposes eventually, if family circumstances will permit and his employment so dictates, to change his place of residence permanently, rather than that of one who has already done so.
The conclusion, therefore, is that the plaintiff is a citizen of Pennsylvania, of which state both the defendants are citizens, and that therefore the plea of the defendant Howley must be1 sustained, and the case dismissed for lack of jurisdiction.