As § 37, Judicial Code, does not prescribe any particular mode
by which the question of jurisdiction shall be raised, the method
of raising that question may be left to the sound discretion of the
trial judge, and, if the state practice admits, the issue may be
raised by general denial in the answer.
While the trial court may submit the question of a party's
residence to the jury, it is not bound to do so, and in this case
the court properly exercised its privilege to dispose of that issue
on the testimony.
In this case, the defendant was not chargeable with laches
because he did not force to trial the issue of plaintiff's
citizenship.
The fact that delay in determining the issue of citizenship
results in the statute of limitations applying does not confer
jurisdiction on the federal court if diverse citizenship does not
exist.
Where the record in a case dismissed by the district court for
want of jurisdiction on account of absence of diverse citizenship
brings up the testimony, this Court must consider it and determine
whether the trial court rightly decided that plaintiff was a
citizen of the same state as defendant.
If plaintiff at the commencement of the action, be domiciled in
a different
Page 235 U. S. 562
state from that of defendant, he is a citizen of that state
within the meaning of the Judicial Code.
Change of domicile arises where there is a change of abode and
the absence of any present intention to not reside permanently or
indefinitely in the new abode, and this notwithstanding a floating
intention of returning to the former place of domicile after
completion of the object for which the change was made. In this
case,
held that the acts of the plaintiff in regard to his
change of residence indicated a change of domicile to the state in
which defendant resided prior to commencement of the action, and
diverse citizenship did not then exist.
The facts, which involve the jurisdiction of this Court under §
238, Judicial Code, and the construction of § 37, Judicial Code,
and the jurisdiction and duty of the district court thereunder, are
stated in the opinion.
Page 235 U. S. 565
MR. JUSTICE DAY delivered the opinion of the Court.
This case is here upon writ of error and certificate presenting
the question of jurisdiction of the district court. It comes under
§ 238 of the Judicial Code, and presents to this Court the question
of jurisdiction only. The suit was begun on November 5th, 1904, in
the United States Circuit Court for the District of Connecticut. On
May 24th, 1905, a substituted complaint was filed. The object of
the suit was to recover for alleged breaches of a certain indemnity
contract set forth in the complaint. In this substituted complaint,
as well as in the original complaint, the allegation as to diverse
citizenship is that plaintiff is a citizen of the State of
Michigan, and defendants are citizens of the State of Connecticut.
On August 3, 1907, an answer was
Page 235 U. S. 566
filed in which it was admitted that the defendants were citizens
of the State of Connecticut, and it was averred that the defendants
had no knowledge or information as to the citizenship of the
plaintiff, and would "leave him to proof thereof." On April 27th,
1911, the defendants filed a motion to dismiss the suit for want of
jurisdiction. On October 5th, 1911, defendants filed another motion
to dismiss for want of jurisdiction. On October 6th, 1911, the
plaintiff filed a motion to strike the last-mentioned motion from
the files. Both of the motions to dismiss were upon the ground that
the plaintiff was not a citizen of the State of Michigan, but was a
citizen of the State of Connecticut. The motion of the plaintiff to
strike the last-mentioned motion from the files was upon the
ground, among others, that the motion was an improper and irregular
method of raising the question of jurisdiction, and because that
matter was already in issue under the allegations of complaint and
answer.
After the taking effect of the Judicial Code on January 1st,
1912, the case was transferred to the District Court of the United
States for the District of Connecticut. On August 26th, 1912, a
jury was impaneled, and the case came on for trial. The court
directed that the trial should proceed upon the question of
jurisdiction. Thereupon the parties proceeded to offer testimony
upon the question of plaintiff's residence. At the conclusion of
this testimony, the court found that the plaintiff and defendants
were citizens of the State of Connecticut at the time the action
was begun, and accordingly dismissed the suit upon the sole ground
of want of jurisdiction, and ordered the jury discharged from
further consideration of the case.
The Act of 1875, 18 Stat. 472, c. 137, § 5, now § 37 of the
Judicial Code, 36 Stat. 1098, c. 231, provides:
"If, in any suit commenced in a district court, or removed from
a state court to a district court of the United States, it shall
appear to the satisfaction of the said district
Page 235 U. S. 567
court at any time after such suit has been brought or removed
thereto, that such suit does not really and substantially involve a
dispute or controversy properly within the jurisdiction of said
district court, or that the parties to said suit have been
improperly or collusively made or joined, either as plaintiffs or
defendants, for the purpose of creating a case cognizable or
removable under this chapter, the said district court shall proceed
no further therein, but shall dismiss the suit, or remand it to the
court from which it was removed, as justice may require, and shall
make such order as to costs as shall be just."
This section defines the duty of the district court of the
United States when it shall appear to its satisfaction that the
suit does not really and substantially involve a dispute or
controversy properly within the court's jurisdiction. While this
section gives the court the right to dismiss a suit when that
situation appears, whether the parties raise the question or not,
it is the duty of the defendant to bring the matter to the
attention of the court, in some proper way, where the facts are
known upon which a want of jurisdiction appears.
Deputron v.
Young, 134 U. S. 241,
134 U. S. 251.
Under the former practice, before the passage of the Act of 1875,
above quoted, it was necessary to raise the issue of citizenship by
a plea in abatement, when the pleadings properly averred the
citizenship of the parties.
Farmington v. Pillsbury,
114 U. S. 138,
114 U. S. 143;
Little v. Giles, 118 U. S. 596,
118 U. S. 604.
The objection may be made now by answer before answering to the
merits, or it may be made by motion.
Steigleder v.
McQuesten, 198 U. S. 141. The
statute does not prescribe any particular mode by which the
question of jurisdiction is to be brought to the attention of the
court, and the method of raising the question may be left to the
sound discretion of the trial judge.
Wetmore v. Rymer,
169 U. S. 115,
169 U. S. 121.
It may be raised by a general denial in the answer, where the state
practice permits of that course.
Roberts
v. Lewis, 144
Page 235 U. S. 568
U.S. 653. In the State of Connecticut, under the form of denial
contained in this answer, the answer raised the issue.
Sayles
v. Fitzgerald, 72 Conn. 391, 396. Moreover, the parties to the
suit regarded the matter as at issue under the pleadings, and it
was so held by the court. The motion of the plaintiff to strike off
the motion to dismiss for want of jurisdiction was based upon the
ground that that issue was already made in the pleadings. The
question was properly before the court.
It is also insisted that the court erred in itself considering
the testimony, and in not submitting the issue to the jury. But
while the court might have submitted the question to the jury, it
was not bound to do so; the parties having adduced their testimony,
pro and con, it was the privilege of the court, if it saw fit, to
dispose of the issue upon the testimony which was fully heard upon
that subject.
Wetmore v. Rymer, supra.
It is urged that the delay in making the issue and bringing it
to a hearing was such laches upon the part of the defendants as to
preclude the consideration of the question. The issue was made when
the answer was filed, but for some reason neither party forced the
case to trial. Apart from the imperative duty of the court to
dismiss the action under the statute, when it appears that the case
is not within the jurisdiction of the court, we find nothing in the
conduct of the parties to support the suggestion of laches. If it
be true that the statute of limitations would prevent the beginning
of a new action in the state court, that fact cannot confer
jurisdiction upon a court of the United States, in the absence of a
showing of diverse citizenship.
As the record brings up the testimony upon which the court below
decided the question, it becomes the duty of this Court to consider
it and determine whether the court rightly found that the plaintiff
at the beginning of the suit was not a citizen of the State of
Michigan.
Wetmore
Page 235 U. S. 569
v. Rymer, supra. If the plaintiff was domiciled in the
State of Michigan when this suit was begun, he was a citizen of
that state within the meaning of the Judicial Code.
Morris v.
Gilmer, 129 U. S. 315;
Williamson v. Osenton, 232 U. S. 619,
232 U. S. 624.
In this case, it clearly appears that, for some years prior to
1890, the plaintiff lived in Menominee, in the State of Michigan.
He had there a home, and exercised the ordinary duties and
privileges of citizenship. In February, 1890, his uncle died in
Connecticut, and the plaintiff immediately went to Danbury, in that
state, where he remained practically all the time until his death
in 1911.
The question is had he lost his domicil in Michigan and acquired
one in Connecticut, so that he was, at the beginning of the suit in
1904, in reality a citizen of the last-mentioned state?
This matter of domicil has been often before this Court, and was
last under consideration in the case of
Williamson v. Osenton,
supra. In that case, the definition of domicil, as defined by
Mr. Dicey, in his book on "Conflict of Laws," 2d ed. 111, is cited
with approval. There, change of domicil is said to arise where
there is a change of abode and "the absence of any present
intention to not reside permanently or indefinitely in the new
abode." Or, as Judge Story puts it in his work on "Conflict of
Laws," 7th ed. § 46, page 41,
"If a person has actually removed to another place with an
intention of remaining there for an indefinite time, and as a place
of fixed present domicil, it is to be deemed his place of domicil
notwithstanding he may entertain a floating intention to return at
some future period. . . . The requisite animus is the present
intention of permanent or indefinite residence in a given place or
country, or, negatively expressed, the absence of any present
intention of not residing there permanently or indefinitely."
Price v. Price, 156 Pa. 617, 626.
Page 235 U. S. 570
Applying these definitions to the conduct of plaintiff, we have
no doubt that the court was right in holding that he had acquired a
new domicil in the State of Connecticut. He removed there with his
family, and occupied a house to which he held the title. He owned
other real estate in Connecticut, inherited from his uncle. He took
a letter from his church in Michigan to a church in Danbury,
Connecticut. For about ten years, he was not back in Michigan
except for a short time, and then for a temporary purpose. The
Michigan homestead and much of the furniture used there were sold
upon the removal to Connecticut. For more than ten years, he
resided continuously with his family in the same house in Danbury,
Connecticut. While the plaintiff did not vote in Connecticut, as
far as the record shows, it is in evidence that he declared to
another his intention of becoming a voter there. To some witnesses
he declared his purpose to reside in Connecticut. As against this
testimony, it appears that he left his desk with his brother-in law
in Michigan, which he declared was for the purpose of "holding his
residence there." To some witnesses he declared his intention to
live in Michigan, and expressed his preference for that state as a
dwelling-place. He continued to pay membership dues to orders to
which he belonged in Michigan.
It is apparent from all the testimony that the plaintiff may
have had, and probably did have, some floating intention of
returning to Michigan after the determination of certain litigation
and the disposition of his property in Connecticut, should he
succeed in disposing of it for what he considered it worth. But, as
we have seen, a floating intention of that kind was not enough to
prevent the new place, under the circumstances shown, from becoming
his domicil. It was his place of abode, which he had no present
intention of changing; that is the essence of domicil.
Page 235 U. S. 571
We find no error in the conclusion of the district court upon
the question of jurisdiction, and its judgment is therefore
Affirmed.