75 F. 321 | Cir. Ct. Tenn. | 1896
Mr. Hunt, father of Mrs. Gholson, removed from Tennessee to Texas when a boy, became a citizen of Texas, and married there. Of the children of this marriage, only one survived infancy, that being Mrs. Gholson. Mrs. Gholson was born in 18G5, and, after the time of her birth, her father and mother, having no house of residence, lived in boarding houses and hotels, not residing in any particular town or county, and not possessing a fixed place of residence or municipal domicile. Mrs. Gholson’s mother died when she was 6 or 7 years old, after which the father and child resided part of the time in Tennessee and part in Texas, the mode of residence continuing to be without a fixed domicile. Texas continued to be the state of Hunt’s domicile. Mrs. Gholson’s father died -when she was about 15 years of age, and she seems to have received the principal part of her education at Nashville, Tenn. She was traveling in Europe in 1888, when she met Arthur Marks, at Berlin, he bping then in the diplomatic service of the United States. They became engaged, and were married in November, 1888, in Scotland. Mr. Marks, resigning the consular clerkship, returned to the home of his father, Ex-Governor Marks, and took up his residence at the father’s home, “Hundred Oaks,” at Winchester, Tenn. Mr. Marks, her first husband, died in September, 1892, and left, surviving him, one child of the marriage, Albert S. Marks, Jr. In the progress of events not necessary to be detailed, Albert D. Marks became trustee by deed of all the estate of his brother Arthur, which consisted almost entirely of the personal estate received by him in his marital right by the marriage with Miss Hunt. After the death of her husband, Arthur H. Marks, the widow spent her time at various places, but treated Hundred Oaks as her home. Texas was her domicile of origin or nativity. Finally, influenced by reasons not necessary to be given, she determined to remove to the state of Texas with her child, still an infant, and make that state her permanent home. Accordingly, May 1, 1895, she left Tennessee for Texas, in company with Mrs. Pettus,„ who was her traveling companion, taking with her the child. She did not, when leaving Tennessee, contemplate locating at any particular place. Her father owned at the time of his death a considerable landed estate in Texas, in different counties, consisting mainly of grazing and timber lands. It is reasonably certain that her intention was then to live with her child, and go from place to place, without a
On September 13, 1895, Albert 1). Marks, a citizen of Tennessee, as trustee, filed a hill in the chancery court at Winchester, Tenn., against Mrs. Gholson, her husband, and the minor child, alleging that they were nonresidents of the state of Tennessee, and residents of the state of Texas, and making as defendant, also, Boy Fitzpatrick, a citizen of Tennessee, alleged to be the regular guardian of the infant, Albert B. The purpose of this suit was to surrender the trust, with a final account. On the same day, Albert S. Marks, the infant, by his next friend, Mr. Gholson, filed a hill in the United States circuit court at Nashville, Tenn., suing as a citizen of Texas, against Albert 1). Marks and his mother, Mrs. Novella Marks, citizens of Tennessee. Both hills are substantially for the same purpose, though not entirely so. Neither in the oral arguments nor briefs is there any reference to the presence of Fitzpatrick as affecting the question of jurisdiction by removal. This point is reserved for specific inquiry, which, upon the authority of cases like Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, the court must make for itself. It is a case where the jurisdiction is concurrent in state and federal courts. The bill was filed in the chancery court, at Winchester, at 7:30 o’clock a. in., while the precise time of filing the hill in the United States
The constitution of the United States (article 3, § 2) declares that the judicial power of the United States shall extend, among other cases, “to controversies between citizens of different states.” And the various judiciary acts of congress in carrying out this provision of the constitution have conferred jurisdiction on the circuit courts, limited in the terms of the constitution to suits “between citizens of different states,” further restricting the jurisdiction to “suits of a civil nature at common law or in equity,” and restricting the jurisdiction also in respect to the sum or value of the matter in dispute. And as the jurisdiction of the circuit courts is limited in the sense that such courts have no jurisdiction, except that conferred by the constitution and laws of the United States, the ruling has been such from the beginning as to requjre that the jurisdiction should clearly and distinctly appear from the record without argument or inference, the presumption being that a case is without the jurisdiction of the • circuit court unless the contrary affirmatively appears. Robertson v. Cease, 97 U. S. 646; Brown v. Keene, 8 Pet. 112; Anderson v. Watt, 138 U. S. 694, 11 Sup. Ct. 449. Persons may be citizens of the United States without being citizens of any state. Slaughterhouse Cases, 16 Wall. 36; U. S. v. Cruikshank, 92 U. S. 542. Citizenship, in relation to the federal judiciary, must be of that kind which identifies the party with some particular state of which he is a member. Butler v. Farnsworth (1821) 4 Wash. C. C. 101, Fed. Cas. No. 2,240; Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289; Mitchell v. U. S., 21 Wall. 350. To constitute citizenship of a state in relation to the judiciary acts requires — First, residence within such state; and, second, an intention that such residence shall be permanent. In this sense,' state citizenship means the same thing as domicile in its general acceptation. The act of residence does not alone constitute the domicile of a party, but it is the fact of residence, accompanied by an intention of remaining, which constitutes domicile. The distinction between domicile and mere residence may be shortly put as that between residence animo manendi and residence animo revertendi. Morris v. Gilmer, Mitchell v. U. S., Butler v. Farnsworth, supra; Doyle v. Clark, Fed. Cas. No. 4,053. Mere residence may be for a transient purpose, as for business, for a fixed period, or limited by an expected future event, upon the happening of which there is a our-
In Mitchell v. U. S., 21 Wall. 353, Mr. Justice Swayne said:
“Among tlie circumstances usually relied upon to establish tlie animus manendi are declarations of the party, the exercise of political rights, the payment of personal taxes, a house of residence, and a place of business.”
It may be observed, in passing, that, the facts here mentioned are treated as parts of the evidence tending to establish citizenship, but not as conditions of citizenship, or citizenship itself. Infants cannot change their own domicile. Their domicile is (hat of their parents. If the lather be living, the domicile of an infant and that of its mother follow' the domicile of the father, unless the husband and wife be separated. After death of the father, the domicile of-the infant is that of the mother; and, while remaining a widow, she may, by changing her domicile, change the domicile of the infant, the domicile of the child following the domicile of the mother. The widow, however, by marrying again, acquires the domicile of the second husband, and does not thereafter possess the power to change the domicile of the infant. Lamar v. Micou, 112 U. S. 452, 5 Sup. Ct. 221; Lamar v. Micou, 114 U. S. 219, 5 Sup. Ct. 857; Borer on Interstate Law (2d Ed.) 261. At the time of the death of Arthur H. Marks, therefore, the domicile of the infant, Albert 8., was that of his father, at Winchester, in Tennessee, and the same was also the domicile of the mother; and this domicile, once existing, continues until another is acquired. Desmare v. U. S., 93 U. S. 605. And so, too, as a matter of evidence, the domicile, once acquired, is presumed to continue until it is shown to have been changed. Mitchell v. U. S., 21 Wall. 350. As the husband had his domicile in the state of Tennessee at the time of his death, the domicile of the widow remained there until it is shown to have been changed, which she had the power to do between his death and her second marriage, or while she remained a
In Cooper v. Galbraith (1819) Fed. Cas. No. 3,193, Mr. Justice Washington, presiding at the circuit, charged the jury as follows:
“The question of jurisdiction is first to he considered. It is composed of law and fact; and, as soon as the latter is ascertained, the question is relieved from every difficulty. ‘Citizenship,’ when spoken of in the constitution in reference to the jurisdiction of the courts of the United States, means nothing more than ‘residence.’ The citizens of each state are entitled to all the privileges and immunities of citizens in the several states; hut, to*327 give jurisdiction to the courts of the United States, the suit must, be between citizens residing in different states, or between a citizen and an alien. If a citizen of one state should think proper to change his domicile, and to remove himself and family, if he have one, into another state, with a bona lido intention of abandoning his former place of residence, and to become an inhabitant or resident of the state to which he removes, lie becomes, immediately upon such removal accompanied with such intention, a resident citizen of the state, and may maintain any action in the circuit court of the slate which he has abandoned, or in that of any other state, except the one in which he has 'settled himself. Time, in relation to this new residence, occupation, a. sudden removal back to the state he has abandoned after instituting a. suit in the circuit court of that state, and the like, are circumstances which may be relied upon to show that his first removal was not bona, fide, or intended to be permanent; but they will not be sufficient to disprove his citizenship in the place of his new domicile, and to exclude him from the jurisdiction of the circuit court for the district in which he had formerly resided, if the jury are satisfied from the evidence that bis first removal was bona fide, and without an intention of returning.”
This case was followed in the subsequent case of Butler v. Farnsworth (1821) 4 Wash. C. C. 101, Fed. Cas. No. 2,240. The case of Cooper v. Galbraith was approved in Morris v. Gilmer, 129 U. S. 328, 9 Sup. Ct. 289. In Morris v. Gilmer the supreme court of the 'United Slates stated the rule upon this subject as follows:
“We are 11ms brought to the question whether the plaintiff was entitled to sue in the circuit: court. Was he, at the commencement of this suit, a citizen of Tennessee? It is true, as contended by the defendant, that a citizen of the United States can instantly transfer his citizenship from one place to another (Cooper v. Galbraith, 3 Wash. C. C. 546, 554,, Fed. Cas. No. 3,193); and that Ms right to sue in the courts of the United Slates is none the less because his change of domicile was induced by the purpose, whether avowed or not, of invoking, for the protection of his rights, the jurisdiction of a federal courr. As said by Mr. Justice Story, in Briggs v. French, 2 Sumn. 251, 256, Fed. Cas. No. 1.871: ‘If the new citizenship is really and truly acquired. his right to sue is a legitimate, constitutional, and legal consequence, not to be impeached by the motive of his removal.’ Insurance Co. v. Broughton, 109 U. S. 121, 125, 3 Sup. Ct. 99; Jones v. League, 18 How. 76, 81. There must bo an actual, not pretended, change of domicile. In other words, the removal must be ‘a real one, animo manendi, and not merely ostensible.’ Case v. Clarke, 5 Mason, 70, Fed. Cas. No. 2,490. The intention and the act must concur in order to effect such a change of domicile as constitutes a change of citizenship. In Ennis v. Smith. 14 How. 400, 423, it was said that a remo\al winch does not contemplate an absence from a former domicile for an indefinite and uncertain time is not a change of it; ‘and that, while it was difficult to lay down any rule under which every instance of residence could be brought which may make a domicile of choice,’ there must bo, to constitute it, actual residence in the place, with the intention that it is to be a jn’ineipal and permanent residence.”
Ho, in Burnham v. Rangeley (1845) 1 Woodb. & M. 7, Fed. Cas. No. 2,176, Mr. Justice Woodbury, considering the question of a change of citizenship, said:
“There seems, then, to bo no other objection to the application of lire following well-settled principles to the facts in this action? First. That, where a person removes from one place to another with the intent; to make the latter his permanent abode, Ms domicile is to be regarded as immediately changed. The Venus, 8 Cranch, 253, 278; U. S. v. The Penelope, Fed. Cas. No. 16,024; Story. Confl. Laws, § 40; The Ann Green, Fed. Cas. No. 414; 3 C. Reb. Adm. 12; 5 C. Rob. Adm. 60, 233. Justice Story said in The Ann Green, supra.; 'Even the shortest residence, if with a design of a permanent settlement, stamps the party with a national character.’ That was a new residence after a removal. Second. Such a change at once affected the juris*328 diction of the United States courts. Case v. Clarke, Fed. Cas. No. 2,490; Gassies v. Ballon, 6 Pet. 761; Cooper v. Galbraith, Fed. Cas. No. 3,193; Catlett v. Insurance Co., Id. 2,517. The person altering his domicile to another place is a citizen, within the meaning of the apt of congress as to suing or being sued in this court, whether he is yet allowed to vote or to hold office or not in the state of his new domicile. Catlett v. Insurance Co., supra. It follows, then, that as, for the purpose of jurisdiction in this court, a permanent residence generally constitutes citizenship, and controls our proceedings, and as, before the filing of the bill in this ease, we are satisfied that the respondent had removed to Virginia with a view to make it his permanent abode, he was not at that time a citizen of Maine.” ■
In the notes to this case, as published in the reprint (Fed. Oas. No. 2,176), will be found a very full collection of cases upon the subject.
' In Kemna v. Brockhaus, 5 Fed. 762, suit was brought in the Eastern district of Wisconsin, the complainant alleging that the plaintiff was a citizen of Minnesota. This was denied in the plea to jurisdiction, which averred that she was, and always had been, a citizen of the state of Wisconsin. It appeared in evidence that-plaintiff and her husband, with one child and a nurse, left Milwaukee August 5, 1880, and went to Minnesota. Suit was begun September 17, 1880. The plaintiff testified that it had been arranged to go to Glencoe, Minn., where her husband expected to engage in business. They first went to St. Paul, however, she stopping there, and he going to Glencoe. The Glencoe business was given up, and he returned to St. Paul, renting rooms, and keeping house. His situation was then that of one seeking employment, with no place fixed upon, and continued to be such until the suit was instituted, and afterwards. In December following, they returned to Milwaukee; the plaintiff testifying that they had returned to Milwaukee merely to await the trial of the suit, and with the intention of returning to St. Paul when the suit should be disposed of. It was held that her citizenship had been changed to the state of Minnesota. And in harmony with this ruling are the cases of. Blair v. Female Seminary, 1 Bond, 578, Fed. Cas. No. 1,486; The Venus, 8 Cranch, 253; Read v. Bertrand, Fed. Cas. No. 11,602; Doyle v. Clark, Fed. Cas. No. 4,053.
In the case last cited (Doyle v. Clark), Mr. Justice Brown, then district.judge, thus stated the law in relation to a change of domicile :
“Two tilings must concur to effectuate a change of domicile: (1) An actual change or removal of residence. (2) An intention to make such change or removal permanent. If both of these requisites concur in point of time, the place to which removal is made becomes instantly the place of domicile, notwithstanding the party may entertain a floating intention of returning at some future period. Story, Confl. Laws, § 415. This is illustrated in the ordinary case of an emigrant who transports his family and household effects to a new state, and settles upon a farm. A change of domicile takes place immediately upon his arrival. On the other hand, a person may transport his family and household effects in like manner to another state for a temporary purpose (as, for instance, the settlement of some particular business, or for a change of climate in summer) without thereby disturbing his former residence. The leading English case on this question is that of Somerville v. Somerville, 5 Ves. 750; and the principles there laid down have been since so often reaffirmed as to have become the unquestioned law of both coun*329 tries. From a very large number of American cases, I cite the following as the best illustrations of the general doctrine: State v. Hallett, 8 Ala. 159; Ringgold v. Barley, 5 Md. 186; Smith v. Croom, 7 Fla. 81; McKowen v. McGuire, 15 La. Ann. 637; Leach v. Pillsbury, 15 N. H. 137; Johnson v. Twenty-One Bales, Fed. Cas. No. 7,417; Jennison v. Hapgood, 10 Pick. 98; Williams v. Whiting, 11 Mass. 124.”
As will appear from the statement of the facts, Texas was the domicile of origin or nativity of the mother of the infant, Albert, and her domicile in Tennessee was one of choice. This fact is brought out because it is agreed by all of the authorities that the domicile of nativity or origin is more easily reacquired, or reverts more readily than a domicile of choice may he acquired, or, to say the least of it, less evidence is required to establish such change, particularly as respects time and a fixed locality or municipal domicile, which facts, indeed, have no hearing except as evidence in any case.
In Story on the Conflict of Laws the following propositions are laid down as established;
“Fourtecnthly. The mere Intention to acquire a new domicile, without the fact of an actual removal, avails nothing; neither does the fact of removal without the intention. * * * Seventeen; hly. If a man has acquired a new domicile, different from that of his birth, and he removes from it with an intention, to resume his native domicile, the latter is reacquired, even while he is on his way, in itinere, for it reverts from the moment the other is given up. The foregoing rules mostly relate to changes of domicile from one place to another within the same country, or territorial sovereignty, although many of them are applicable to residence in different countries or sovereign-ties. * * Thirdly. A national character, acquired in a foreign coxmtry by residence, changes when the party has left the country animo non revertendi. and is on his return to the country where he had his antecedent domicile. And especially, if he be in itinere to his native country with that intent, his native domicile revives while he is yet in transitu; for the native domicile easily reveris. The moment a foreign domicile is abandoned, the native domicile Ls reacquired.” Sections 47, 48.
I see no reason why ihe doctrine as thus stated is not applicable to a change from one state to another in onr system. A careful study of the cases, both English and American, upon this subject, discloses that the time of residence is nowhere laid down as a condition of citizenship, or as being essential to the acquisition of a new domicile, or the reacquisition of the domicile of origin, and certainly this is true in respect to the latter. No case has been found which suggests any particular time as constituting the element of residence in a change of domicile, and it seems to me that the subject in its nature is incapable of any rale as to time. And counsel concedes that time is not essential, and rests the case upon the contention for a local fixed domicile. It is not believed that any case can be found holding that a “house of residence,” or a fixed residence within the state, is essential to establish domicile. Considering the intimate relation between the states in our system and the freedom of interstate commerce and the habits of our people, I do not think any particular mode of residence is requisite. The necessary animus existing, it is sufficient that a party actually abides in a state, intending it as his or her permanent home. In the case of unmarried men and women, having left the home of their-
“The whole question of domicile,” said Mr. Justice Woodbury in Burnham v. Rangeley, “is usually dependent on the intent of the party, though that is to be collected or inferred from acts as well as declarations. The acts are chiefly important as showing the intent.”
And, in the Law of Domicile by Jacobs, the result of the decided cases is thus stated:
“It is probably not necessary that, in order to work a change of domicile from one state or country to another, the person whose domicile is in question should reach the particular spot within the territorial limits of the latter at which he intends fixing his permanent abode; and indeed it may perhaps be said that it is not absolutely necessary for such purpose that the person should ever have, either in fact or in contemplation, a permanent home within any particular municipal division of such state or country. Such cases must necessarily be rare, but it is possible to conceive of a Frenchman, for example, coming to England with the intention of .permanently remaining there, but without ever fixing a permanent abode in any particular part of that country. In such case, while it would doubtless be much more difficult to prove the requisite intention than if he had, for example, purchased a dwelling house, and fixed himself in it in an apparently permanent manner, yet, assuming ihe requisite intention to be made out by other proofs, there is little doubt that his domicile would be held to be changed. Lord Jeffrey, in Arnott y. Groom, thus remarks upon this subject: T cannot admit what Lord Fullerton assumes to be the rule, — that, in order to make a domicile, it is necessary to have some particular spot within the territory of a law; that it is not enough that the party should have an apparently continual residence there, but shall actually have a particular spot, or remain fixed in some permanent establishment. In considering the indicia* of' domicile, these things are important, but they are not necessary, as matters of general law, to constitute domicile. Many old bachelors never have a house they can call their own.. They go from hotel to hotel, and from watering place to watering place, careless of the comfort of more permanent residence, and unwilling to submit to the gene attendant on it. There was the case of a nobleman who always lived at inns, and would have no servants but waiters; but he did not lose his domicile on that account. If the purpose of remaining in the territory be clearly proved aliter, a particular home is not necessary.’ Dicey also maintains the same view. * * * When the transfer of bodily presence has been accomplished, the factum is complete; and, generally speaking, no further act is necessary, but domicile invests immediately, provided the requisite animus be present.” Sections 133 and 134.
So, too, in Ms recent work on the Conflict of Laws, Mr. Dicey, after distinguishing between the terms “domicile” and “home,” and quot
“Take, for example, Story’s definition of the term ‘domicile,’ viz.: ‘That place in which a person’s habitation is fixed without a.ny present intention of removing therefrom,’ and apply it to the following case: D. is a Frenchman, settled for years in England, but living in lodgings in Manchester. His full intention is to live permanently in England, but he has no Intention of residing more than a limited time in Manchester. His intention may be to spend his life successively in different parts of England, or his purpose may be to go after six months to London, and occupy a house there (which he has already bought.) for the rest of his life. Under these circumstances, there is no one place in England which is his home or domicile. Manchester is not his home, because, though he resides there, he has not, and never had, as regards Manchester, any intention of permanent residence;. No other place in England is his home, because, though he may intend to reside in London, he has not begun to reside there in fact. The solution of the difficulty, which might in fact arise with reference, e. g. to the disposition of D.’s property, if he were to die before leaving Manchester, is that, though not domiciled at any one place in England, he has an English domicile, since, with regard to England, there exists on D.’s part both residence and the animus manendi.” Dicey, Gonfl. Laws, p. 93.
Hoe, also, American Note, pp. 161, 166-170, and cases referred to, sections 24, 25. See, also, Anderson v. Watt, 138 U. S. 694, 11 Sup. Ct. 449. Also the leading case of Udny v. Udny (1869) L. R. 1 H. L. Sc. 441, 457.
The learned counsel, supporting the objection to jurisdiction in the case, refers to the following clause in the judiciary act:
“And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.”
It is argued that, under this provision in the act, a citizen of another state going to Texas could not have brought suit against Mrs. Marks, because she was not a resident of any particular district, the state of Texas being divided into three judicial districts. Nor, it is said, could Mrs. Marks have instituted a suit in either of those districts, as being (he place of her residence, against a citizen of another state, provided valid service of process could have been had upon such citizen of another state. And it is argued with much confidence and force that this proves that the test of citizenship for the purpose of jurisdiction is a fixed residence. This argument I do not think requires any extended examination. The obvious vice in the argument is that it assumes the very point in dispute, and then proceeds to the conclusion. Counsel, having argued that a local domicile is necessary to constitute the residence element in citizenship, now takes that point for granted, and contends that Mrs. Marks could not acquire a residence in any district of Texas, within the meaning of the clause in question, for want of such local domicile. It is not insisted that the term “residence” is used in this clause of the judiciary act in any different meaning from its use as an element constituting citizenship, and, if it has been shown (as I think it has) that a local domicile is not necessary to estab
The motion to remand and the plea being overruled leaves both cases pending in this court between the parties really interested, the object of the two suits being substantially the same. The same relief sought may be had in either case by proper pleading. If the suit instituted in the state court had remained there, its pendency therein would not have constituted a sufficient-defense to the suit for the same purpose in this court. Insurance Co. v. Brune’s Assignee, 96 U. S. 588; Gordon v. Gilfoil, 99 U. S. 168; Stanton v. Embrey, 93 U. S. 548; Ahlhauser v. Butler, 50 Fed 709. Decisions to