5 F. 762 | U.S. Circuit Court for the District of Eastern Wisconsin | 1881
This case has been beard upon a plea to the jurisdiction of the court. The complaint alleges that at the time of the commencement of the suit the plaintiff was a citizen of the state of Minnesota. The plea avers that she is, and always has been, a citizen of the state of Wisconsin, of which state the defendants are citizens, and proofs have been taken on the question of the plain till’s residence and citizenship. The general rule upon the subject of citizenship is well settled. It is that, “in order to give jurisdiction to the courts of the United States, the citizenship of the party must be founded on a change of domicile, and permanent residence in the state to which he may have removed from another state. Mere residence is prima facie evidence of such change, although, when it is explained and shown to have been for temporary purposes, the presumption is destroyed. The intention is to be collected from acts.” Lessee of Butler v. Farnsworth, 4 Wash. 101; 1 Abbott, (U. S.) Pr. 211. “If a citizen of one state think proper to change his domicile, and to remove himself and family * 0 0 into another state, with a bona fide intention of abandoning Iris former place of residence, and to become an inhabitant or resident of the state to which lie removes, bo becomes immediately upon such removal, accompanied with such intention, a resident citizen of that state within the meaning oE-the provision of the constitution relative to the jurisdiction of the federal courts, and may maintain an action in the circuit court of the state which he has abandoned. * 0 0 Time, in relation to his new residence, occupation, a sudden removal back after instituting a suit, and the like, are circumstances which may be relied upon to show that his first removal was not bona fide or per
The plaintiff in the present case is a married woman. She was married in January, 1879. Prior to her marriage she had always resided in Milwaukee. This was the home of her parents. After the marriage, and until August 5, 1880, she- and her husband lived and kept house in this city. He is a person of foreign birth, and before his marriage to the plaintiff he had resided in Wisconsin two or three years. After-marriage, and while living in this state, he was employed as a traveling salesman for Chicago and Milwaukee houses. On the fifth of August, 1880, the plaintiff and her husband, with one child and a nurse, left Milwaukee and went to Minnesota. This suit was begun about September 17, 1880. It is
These are the prominent features of.the plaintiff’s testimony. There are other portions of her testimony which, it is proper to remark, ought to be considered with a good deal of allowance, such as that relating to her husband’s business affairs, his personal intentions, his supposed naturalization as a citizen, and his voting at the election in St. Paul; because, presumably, her .knowledge of those matters was obtained by communication from him.
But the question is, do not the facts, to the extent that they are established by testimony which the court ought to accept as pertinent and legitimate, make a case of citizenship in another state, within the rule laid down by the authorities ?
Since the question is one of mixed law and fact, and since so much may depend upon intention, in connection with the aets of the party and the circumstances of the case, it is sometimes difficult to determine when there has been such a change of domicile as destroys a former citizenship and establishes a new one. The plaintiff has testified; under objection, to the intentions and purposes of herself and husband. It is true, as argued, that intention is to be collected from aets, and therefore it is' not competent for a party to prove his own declarations of intention, made before any acts done, in order to give character to his subsequent acts. But where aets have leen done, such as actual removal from one place to another, it is, as I understand, competent in a case like this for the party to testify to his purpose and intention as connected with those acts, when they are brought in question, precisely as, in a case where fraud is charged, an actor in the
Comment was made upon the fact that the plaintiff’s husband pledged their household furniture and left it in the hands of a pawnbroker, at the time they removed to Minnesota, as a circumstance indicative of a purpose not to abandon their residence in Milwaukee. While the situation in which their furniture was placed has a bearing upon the pecuniary ability of the husband to engage in business, it has seemed tome that the fact that the parties broke up housekeeping, stored their furniture and pawned it for money, which must have enabled them to remove from the state, tends rather to corroborate the claim that the removal, was made with a view of establishing a permanent residence elsewhere, than otherwise. The plaintiff’s home had always been in Milwaukee. Here her parents and family resided. Why should these acts be done unless there was a bona fide intention to remove to another state ? The court cannot infer that they were done merely to enable her to begin this suit in this court, in the absence of any proof tending in that direction.
To adopt the view taken by the learned counsel for tha defendants, involves, as I conceive, the utter rejection of the plaintiff’s testimony as quite unworthy of belief. I do not think it is sufficiently impeached to justify the court in so doing as to material matters whereof she speaks from avowed personal knowledge ; and we have to settle the question upon the weight of credible evidence as it is now presented to the court. There was a breaking up by the parties of household life in Milwaukee. There was an actual removal to another state. There appears to have been an intention to remove to a fixed place in that state, followed by a change to another
I do not see how the alleged alienage of the husband can affect iihe question. It is the citizenship of the plaintiff that is involved. She had been a citizen of Wisconsin. Her domicile and residence would follow that of her husband. With his change of residence her residence and citizenship, especially .if she personally accompanied him, would change, and his legal status as to residence would be hers. His national citizenship would not, I think, affect her citizenship when her actual residence followed his. On the whole, my opinion is that the plaintiff should have judgment in her favor on the issue raised by the plea.