150 F. 462 | U.S. Circuit Court for the District of South Dakota | 1907
Counsel for defendants have made a motion in the above-entitled action to dismiss the same, for the reason that the complainant is a citizen of the state of South Dakota, and not of the state of Washington, and that therefore this court has no jurisdiction of the action. There is no doubt but that counsel have a right to make this motion, but it is unfortunate that it should come before the court for decision upon affidavits, as it is a very unsatisfactory method of determining disputed questions of fact; but, under the provisions of Act Cong. March 3, 1876, 18 Stat. 472, c. 470,' § 5, it is the plain duty of this court to dismiss any suit originally brought therein, whenever it shall appear to the satisfaction of the court that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court.
The affidavits filed on this hearing, both on the part of complainant, and on part of defendants, establish the following undisputed facts: Prior to October 10, 1902, complainant- was a citizen of the state of Washington. On or about that date his brother having died near the/ city of Sioux Falls, S. D., complainant came to Sioux Falls and lived there a while with his niece, Nellie B. Jones, and then went to live with one Longerbeam upon a farm near the city of Sioux Falls, and continued to live with said Longerbeam until the expiration of the lease which Longerbeam had of the farm upon which he resided. The farm was then subsequently leased, and complainant reserved for his own use in the house on the farm two rooms in which he had a stove and other furniture necessary to one living under the conditions which surrounded complainant. Complainant is and always has been, as far as the proof shows, a single man. Complainant continued to live on the farm in question until the month of July, 1906, when he sold said farm, and removed into the city of Sioux Falls, where he continued to live until
Complainant on this hearing testifies that said declarations in said instruments were a mistake, and not called to his notice, and that he was ill and not able to notice matters as carefully as he otherwise would. Complainant also testifies that he always claimed the state of Washington as his home, and that he still claims it as his home. There is other evidence in- the record that prior to the commencement of this suit, and while certain litigation was pending, he refused to consider himself a citizen of South Dakota. There is no evidence but what complainant is a man able to read and write and to transact business. If any of the other declarations of the instruments which he executed on or about the date of the commencement of this suit were in issue he would not be allowed to contradict them, and he can hardly be heard now to say that his declarations in those instruments, that he was of the
“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 and declarations.”
It is true that a man may live in South Dakota and still be a citizen of the state of Washington, providing he intends to return to the state of Washington, and make that state his home, or, in other words, if complainant, when he left the state of Washington, intended to return, ánd has always, subsequently to that time, intended to return, he would still be a citizen of the state of Washington; so, in this case, we must ascertain if we can the intention of complainant as to which place he intended to make, his home. He says he has never intended to make South Dakota his home. Do his acts and declarations before the matter of citizensnip became a subject of inquiry bear out such intention? When citizenship is denied, the burden of proof is upon the complainant to show such citizenship as would give the court jurisdiction. This would be the rule.if the matter should come up under issues made by the pleadings, and it is also the rule where the matter comes before the court on motion, for the reason that the citizenship of the complainant in the state of Washington must affirmatively appear or the court has no. jurisdiction.
I do not think, in face of the facts that appear by the affidavits filed, that complainant’s testimony that he intends to return to the state of Washington permanently to reside can be allowed to decide the issue now before the court. It does not affirmatively appear to the court that complainant was a citizen of the state of Washington on the 8th day of August, li)06.
The motion, therefore, of the counsel for defendants will be granted.