Eberly v. Moore,
65 U.S. 147 (1860)

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U.S. Supreme Court

Eberly v. Moore, 65 U.S. 24 How. 147 147 (1860)

Eberly v. Moore

65 U.S. (24 How.) 147


After the defendants had put in a plea in bar, they moved the court for leave to withdraw the plea and to plead in abatement that the plaintiffs had alleged themselves to be citizens of another state, but were in reality the citizens of the same state with themselves, in consequence of which the district court of the United States had not jurisdiction of the case.

The court allowed the motion and the plea in abatement to be filed. Being satisfied by the verdict of a jury that the allegation of the plea was true, the petition of the plaintiffs was dismissed.

Page 65 U. S. 148

In this the district court was right. The jurisdiction has been conferred by acts of Congress upon the courts of the United States so to supervise the various steps in a cause as to prevent hardship and injustice, and that the merits of a cause may be fairly tried.

That the plea was not artistically drawn is not a sufficient reason for reversing the judgment of the court below.

Angelina R. Eberly, and the minor, Peyton Lytle, brought an action of trespass to try title to a tract of land situated in Falls County, in the State of Texas. The suit was brought against a number of persons, who adopted different modes of defense. Moore and Raybon pleaded the general issue and certain pleas of adverse possession in bar. At the succeeding term of the court they presented a motion for leave to withdraw their answer, and plead in abatement upon the ground that the plaintiffs, instead of being citizens of Kentucky, as they had alleged, were in reality citizens of Texas, and consequently that the court had no jurisdiction over the case. The motion was granted and the pleas in abatement filed. Other proceedings took place which it is not necessary to state. After the jury was empanelled, the court charged them as follows:

"GENTLEMEN OF THE JURY: To give the court jurisdiction of this case, it is necessary that the plaintiffs should be nonresidents, or citizens of the State of Texas. The petition alleges that two of the plaintiffs, viz., Mrs. Eberly and Peyton Lytle, are citizens of the State of Kentucky. This allegation is denied by the plea in abatement, which avers them to be citizens of the State of Texas. Upon this issue arises the question of fact which you are to determine."

"When a domicil or citizenship is once acquired in a state, a mere temporary removal will not affect it, and a citizenship elsewhere will not be acquired without a corresponding removal, accompanied with a bona fide intent for that purpose. This intent the jury must determine from all the facts and circumstances in evidence before them. The jury will simply state in their verdict whether, from the proof before them in

Page 65 U. S. 149

this case, Mrs. Eberly and her grandson, Peyton Lytle, or either of them, were citizens of the States of Kentucky or Texas on the 4th November, 1855."

"T. H. DUVAL, U.S. Dist. Judge"

"The defendants ask the court to charge that if Texas was the natural domicil of Peyton Lytle -- that is, the domicil of his birth -- and if it remained so until the death of his parents, then it was not in the power of the grandmother to change his domicil by carrying him to Kentucky, and thus to confer upon him that citizenship which would give this Court jurisdiction."

"JNO. A. & R. GREEN, For Def'ts"

"The above instruction is given."

"T. H. DUVAL, U.S. Dist. Judge"

And the jury having heard the evidence and argument of counsel and the charge of the court, retired and returned into court with the following verdict, which is in words, to-wit:

"We, the jury, find, from the law and the evidence, that the domicil or residence of the plaintiffs in this case, Angelina R. Eberly, and her grandson, Peyton Lytle, never has been changed from the State of Texas, and that their domicil or residence was in the State of Texas at the commencement of this suit."

The counsel for the plaintiffs took an exception to the judgment of the court granting permission to the defendants to withdraw their plea first filed and file one in abatement, and afterwards moved the court for judgment by default to be entered against the defendants, for want of a defense or answer, which motion being overruled by the court, the plaintiffs excepted. The jury then found that the residence of the plaintiffs was in Texas, and the court dismissed the suit.

Page 65 U. S. 157

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