A citizen of one state who in good faith gives up his residence
there, goes to another state, and takes up a permanent residence
therein, loses his former citizenship and acquires citizenship in
the new place of domicil.
On the facts in this case, the court properly left it to the
jury, and by proper instructions, to decide whether the defendant
in error had acquired a citizenship in Illinois, and if so when
that citizenship was acquired.
An affidavit made by an officer of a railway company on
information and belief as to the citizenship of the plaintiff, in a
suit in a state court against the company, and filed therein for
the purpose of requiring security for costs, is admissible against
the company in an issue made in the circuit court of the United
States after removal of the cause there, on the motion of the
plaintiff to have it remanded.
The facts which make the case are stated in the opinion of the
Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is a writ of error brought under ยง 5 of the Act of March 3,
1875, 18 Stat. 470, c. 137, to reverse an order of the circuit
court remanding a case which had been removed from a state court.
The suit was brought in a state court of Iowa on the 19th of
November, 1883, by Ohle, the defendant in error, described in the
petition as a citizen of Illinois, against the Chicago and
Northwestern Railway Company, an Illinois corporation, to recover
damages for an injury sustained by him
Page 117 U. S. 124
while a laborer on a construction train of the railway company
in Iowa. On the 21st of March, 1884, the company petitioned for the
removal of the suit to the circuit court of the United States on
the ground that Ohle was a citizen of Iowa, and the railway company
a citizen of Illinois. The case was docketed in the circuit court
of the United States May 13, 1884, and the next day, May 14, Ohle
moved to remand because both he and the company were citizens of
the same state. On the 22d of May he was given leave to file a plea
in abatement or to the jurisdiction, which he did August 29, 1884,
alleging that both he and the company were citizens of Illinois.
Upon this plea issue was joined, and a trial had with a jury,
October 30, 1884. On the trial it appeared that at the time of the
injury, Ohle was a minor, having his home with his parents, who
were citizens of Iowa, residing at Burlington in that state. While
still a minor, he brought suit by his next friend in a state court
of Iowa against the company to recover damages for his injury. This
suit was removed by the company to the circuit court of the United
States. Before any trial was had, and in April, 1883, Ohle went to
Janesville, Wisconsin, to attend school for the purpose of learning
telegraphy. In October, 1883, he went from the school to Des
Moines, Iowa, to attend a trial of his suit, and the trial resulted
in a disagreement of the jury. He then went to visit his parents in
Burlington, and stayed about a week. After the disagreement of the
jury, he discontinued his suit, and about the 6th of November went
to Chicago, Illinois, where he remained until about the 27th of
November. While he was in Chicago at this time, the present suit
was begun, and the simple question presented on the trial of the
issue made by the reply to the plea to the jurisdiction was whether
he had actually and in good faith given up his citizenship in Iowa
and acquired a new citizenship in Illinois before this suit was
brought. He was the only witness sworn. He testified in substance
that when he went to Chicago, he intended to make that his home. It
is true in a subsequent part of his testimony he said this was done
so as to prevent the railroad company from removing any other suit
he might bring in Iowa to the courts of the United States, but
according to
Page 117 U. S. 125
his testimony, he then, being of full age, did leave Iowa with
the
bona fide intention of abandoning his citizenship in
that state and gaining another in Illinois. He has never gone back
to Iowa to reside. He was of age, and had the right to abandon one
residence and take up another. He took a room in Chicago and
remained there three weeks. Before this was done, the manager of
the school in Janesville where he was being taught had engaged
employment for him in Chicago, which he was to enter upon as soon
as he had finished his education. After his suit was brought, he
went from Chicago to the school in Janesville with the intention,
as he says, of returning when he had got through with his
education. He did go back on the 13th of March, 1884, took up the
work for which he had been engaged, and remained there all the time
doing that work until he was sworn at the trial of the issue on the
plea to the jurisdiction in this case. He was examined fully by
counsel for both parties. Some things which he testified to had a
tendency to prove that he did not in good faith go to Chicago with
the intention at that time of abandoning his citizenship in Iowa
and acquiring another in Illinois.
In the course of the trial also, Ohle offered in evidence an
affidavit, filed in the case on behalf of the company, for the
purpose of requiring him to give security for costs because he was
a nonresident of Iowa. That affidavit was as follows:
"I, H. G. Burt, being first duly sworn, on oath say that I am
the superintendent of the Iowa Division of the Chicago and
Northwestern Railway Company, which includes the main line from
Clinton, Iowa, to Council Bluffs, Iowa, together with several
branches; that I am acquainted with the facts in regard to the
injury of Gus. B. Ohle for which the above suit is brought, and
that the defendant has a good defense to the entire claim made by
the plaintiff in said cause, and that the plaintiff is a
nonresident of the State of Iowa, as he claims in his petition in
this case, and as I believe."
To the introduction of this affidavit the railway company
objected. This objection was overruled, and an exception taken.
Page 117 U. S. 126
When the evidence was closed, the railway company asked the
court to charge the jury as follows:
"2. In order to acquire a domicile and citizenship in Illinois,
the defendant must have gone there in November, 1883, with the
intention of remaining there permanently then; it was not enough if
his intention was to go on to Janesville and finish his education
there and then return to Illinois to remain permanently. If such
was not his intention, his citizenship in Illinois would only date
from the time he in fact went there to stay permanently, which,
according to his own testimony, was March 13, 1884."
"3. It is shown by the uncontroverted testimony of the plaintiff
that he was a citizen of Iowa before he went to Janesville for the
temporary purpose of acquiring an education in telegraphy; that in
November, 1883, when it is claimed he changed his citizenship, he
went to Chicago, in the State of Illinois, on his way to Janesville
to complete his studies; that he remained in Chicago only
temporarily at that time, and did not go to Illinois permanently
until March 13, 1884. Under these circumstances, the jury are
instructed as a matter of law that plaintiff did not become a
citizen of Illinois until the date last named, namely, March 13,
1884."
These requests were refused, but the court did charge, among
other things, in these words:
"12. Now the point that you are to decide, gentlemen, is this:
did the plaintiff, Gus. B. Ohle at any time leave the State of Iowa
for the purpose of taking up, actually and in good faith, his
residence and citizenship in Illinois? Now I use the word
'residence,' meaning this: it would not be sufficient merely to
show that he went and resided in the sense of living in Illinois.
Residence is evidence of the citizenship. You are ultimately to
find whether he became a citizen of Illinois. In deciding that
question, you have a right to consider what he did in the matter of
residence -- that is, where he actually lived, the place he
occupied, what we ordinarily mean by the term living. Now it is
claimed on the part of Ohle that he went to Chicago in November,
1883; that it was his intent to remove to the State of Illinois,
and with the purpose of completing his
Page 117 U. S. 127
education by going through this school at Janesville and then
pursuing his vocation in life in the State of Illinois. Now if he
did in good faith leave the State of Iowa, give up the citizenship
here, going to Chicago, Illinois, with the idea of taking up his
citizenship there, did actually do that in good faith, although he
may at that time have had it in his mind, and he did actually go to
Janesville to complete his education, that would not defeat his
acquiring his citizenship in the State of Illinois at the time he
actually went there in November, provided you find, remember,
gentlemen, that he had the intent at that time --
bona
fide, actual intent -- of settling in Illinois. Now you are to
determine this under the evidence that has been submitted to you;
you are to determine whether at that time, he then had the honest
intent of changing his residence. If he did, and he went over there
with that purpose, with that intent, and remained in Chicago for
whatever time the evidence shows, some two or three weeks, it is
for you to determine the question as to that. If that was his
object and intent, it would justify you in finding that he had
acquired a citizenship there. The fact that he then went to
Janesville to complete his education would no more defeat his
citizenship in Illinois than it would defeat his citizenship in
Iowa if he had still retained that citizenship."
"It then remains for you to determine the object and intent that
he then had."
"13. Now it is contended on the part of the defendant that he
did not acquire citizenship in Chicago until he went there in
March, 1884, after he had completed his schooling in Janesville.
Now if he did not, if that was the first time that he had actually
gone to Chicago with the intent to remain there and take up his
citizenship and residence there, why then you would have to find
that that was the time that he lost his citizenship in Iowa and
acquired it in Illinois. Therefore, as I say, the question is what
was his intent? By way of illustration, if when he went to the City
of Chicago in November, 1883, his object and purpose was simply to
go through Chicago to Janesville to complete his education, with
the intention some time in the future, after he had completed his
education, of going
Page 117 U. S. 128
back to Illinois, then he would not acquire his citizenship
until he actually went there; but if, when he went in 1883, he went
with the intention of actually changing his residence and acquiring
a citizenship in Chicago, Illinois, then, if you find that to be
the fact, you are justified in finding that at the time he changed
his citizenship within the meaning of the questions involved in
this case."
The company in due time excepted to the last paragraph in the
charge beginning with the words "by way of illustration" and
continuing until the end, and to the refusals to charge as
requested.
The jury found that Ohle was a citizen of Illinois when the suit
was begun, and the court thereupon remanded the cause. This writ of
error was brought to reverse an order to that effect, and the
errors assigned are:
1. That the court erred in refusing to charge as requested.
2. That it erred in that part of the charge as given which was
excepted to, and
3. That it erred in admitting the affidavit objected to in
evidence.
The charge as given covered the requests that were made. It
stated clearly to the jury what was necessary in order to make a
change of citizenship, and we are unable to find anything wrong in
the rules which were laid down. The jury were told as distinctly as
it could be expressed in words that Ohle did not gain a citizenship
in Illinois when he went there on the 6th of November unless he did
in good faith leave Iowa and giving up his residence there go to
Illinois, and actually and in good faith take up his permanent
residence in that state at that time. Clearly this covers the whole
case, and as the jury found that he had gained his citizenship in
Illinois when the suit was begun, the error, if any, was with the
jury in its verdict on the evidence, and not with the court in its
charge on the law. There is nothing in the requests to charge that
is not in the charge as given, except those parts of the requests
which imply a state of facts different from what the jury must have
found. There was certainly some evidence that when Ohle went to
Chicago on the 6th of November, he intended to take
Page 117 U. S. 129
up his home there at that time, and actually did so. Such being
the case, it was not error to refuse to charge the jury that this
was not the fact. It is not for us to decide that the jury brought
in a wrong verdict under a correct charge if the record shows, as
it does, that there was some evidence to support the finding which
was made.
We see no error in the admission of the affidavit in evidence.
The affidavit, having been filed in the cause by the company as a
ground for obtaining an order of the court in its favor, was
competent evidence against it on the trial of another issue, and
the fact that belief affected only its weight, and not its
competency.
Pope v. Allis, 115 U.
S. 363.
After the verdict, the court had nothing to do but to remand the
suit; its order to that effect is consequently
Affirmed.