Opinion · Supreme Court of the United States
Gilbert v. David
235 U.S. 561
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1915-01-05
- Topic
- general
How later courts describe this case
- holding that a person is a citizen of the state in which he or she is domiciled
- holding that a person is a citizen of the state in which she has her domicile, i.e., a permanent home where she intends to remain or to which she intends to return
- holding that plaintiffs “floating intention of returning to Michigan after the determination of certain litigation and the disposition of his property in Connecticut” was insufficient to maintain a domicile in Michigan
- noting that, to be domiciled in a state, a person must reside there and intend to remain indefinitely
- holding that party acquired new domicile when he moved there with his family and purchased a home, owned other real estate there, and spent ten years there without returning to his previous domicile “except for a short time, and then for a temporary purpose”
- explaining with great clarity how federal courts determine a person’s domicile for purposes of jurisdictional citizenship
- holding that domicile determines citizenship
- motion to dismiss for lack of diversity must be addressed, although seven years after suit was instituted
Citator
UpLaw has not yet analyzed Gilbert v. David. The absence of a flag is not a finding that it is good law.
- Cited by
- 264 opinions
Headnotes
- Civil Procedure — Raising Jurisdictional Issues Because § 37 of the Judicial Code does not prescribe any particular mode by which a question of jurisdiction must be raised, the method of raising that question may be left to the sound discretion of the trial judge; where the state practice permits, the issue of diverse citizenship may be raised by a general denial in the answer. 235 U.S. 561
- Civil Procedure — Trial of Jurisdictional Facts Although a trial court may submit the question of a party's residence or citizenship to the jury, it is not bound to do so; the court may instead itself consider testimony taken pro and con upon that issue and dispose of it on the evidence fully heard. 235 U.S. 561
- Civil Procedure — Laches in Raising Jurisdictional Objection A defendant is not chargeable with laches for failing to force to trial the issue of the plaintiff's citizenship, and apart from the court's imperative statutory duty to dismiss a case not within its jurisdiction, nothing in the parties' conduct in allowing the issue to remain untried supports barring consideration of the jurisdictional question. 235 U.S. 561
- Federal Courts & Jurisdiction — Jurisdiction — Diverse Citizenship The fact that delay in determining the issue of citizenship may result in the statute of limitations barring a new action in state court does not confer jurisdiction upon a federal court where diverse citizenship does not in fact exist. 235 U.S. 561
- Federal Courts & Jurisdiction — Review of Jurisdictional Findings Where the record of a case dismissed by the district court for want of jurisdiction on the ground of absence of diverse citizenship brings up the testimony, the appellate court must consider that testimony and determine whether the trial court rightly decided that the plaintiff was a citizen of the same State as the defendant. 235 U.S. 561
- Federal Courts & Jurisdiction — Citizenship and Domicile If a plaintiff, at the commencement of the action, was domiciled in a State different from that of the defendant, he is a citizen of that State within the meaning of the Judicial Code. 235 U.S. 561
- General — Domicile — Change of Domicile A change of domicile arises where there is a change of abode coupled with the absence of any present intention not to reside permanently or indefinitely in the new abode; this is so notwithstanding a floating intention of returning to the former place of domicile after completion of the object for which the change was made, as the essence of domicile is the place of abode that one has no present intention of changing. 235 U.S. 561
- Federal Courts & Jurisdiction — Diversity Jurisdiction Where a plaintiff's acts in regard to his change of residence — including removal to another State with his family, acquisition and occupation of a home there, sale of his former homestead, and continuous residence there for more than ten years — indicate a change of domicile to the State in which the defendant resided prior to commencement of the action, diverse citizenship does not exist at the time the action is begun. 235 U.S. 561
GILBERTv. DAVID,235 U.S. 561(1915)
35 S.Ct. 164
GILBERT, ADMINISTRATOR OF SELLECK,v. DAVID, ADMINISTRATRIX OF SELLECK.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF
CONNECTICUT.
No. 97.
Argued December 4, 1914.
Decided January 5, 1915.
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.
Under the pleadings as they stood the court was without power to dismiss the case for want of jurisdiction due to lack of diversity of citizenship, and the order or judgment of dismissal was a nullity.
Under the facts proven, the court erred in holding that the evidence showed the plaintiff to be a citizen of Connecticut.
The laches of the defendants in failing to raise the question of jurisdiction until after a period of three years had elapsed from the accrual of the cause of action and for over two years after the filing of the substituted complaint required the trial court, in the exercise of the proper discretion, to refuse to consider the question of jurisdiction after the lapse of so many years.
An analysis of the evidence shows that the court in its deductions therefrom applied a wrong principle of law in the consideration of the evidence and failed to apply the correct principle.
The judgment should be reversed and the trial courtPage 563directed to entertain jurisdiction and hear the case upon its merits, or proper issues should be framed as to the jurisdiction and a trial had thereon.
In support of these contentions, seeAdamsv.HeraldPublishing Co., 82 Cons. 448;Adamsv.Shirk, 117 F. 805;Briggsv.Trader's Co., 145 F. 254;Brownv.Gillett,33 Wn. 74;Chambersv.Price, 75 F. 177;Chasev.Wetzler,225 U.S. 79;Cuthbertv.Galloway, 35 F. 466; Conn. Statutes, Rev. 1902; § 2313;Deputronv.Young,134 U.S. 252; Danbury City Charter, §§ 25, 27;EveryEvening Printing Co. v.Butler, 144 F. 916;Farmingtonv.Pillsbury,114 U.S. 138;Fiskev.Hartford,69 Conn. 390;Fosterv.Railway Co., 56 F. 434;Gaddiev.Main, 147 F. 955;Hedgev.Clapp,22 Conn. 262-270;Hartv.Granger,1 Conn. 170;Hartogv.Memory,116 U.S. 590;Hillv.Walker, 167 F. 248;Howev.Howe O.B.B. Co., 154 F. 820;Ill.Cent. R.R. v.Adams,180 U.S. 38;Imperial Ref. Co. v.Wyman, 38 F. 574;In re Cleland,218 U.S. 122;Jonesv.League, 18 How. 76;Jonesv.Subera, 150 F. 462;Kirvenv.Virginia-Carolina Co., 145 F. 288;Kilgorev.Norman, 119 F. 1006;Kuntzv.Davidson County, 6 Lea (Tenn.), 65;Lebensbergerv.Schofield, 139 F. 382;National Accident Ass'nv.Sparks, 83 F. 225;Nicholsv.Ansonia,81 Conn. 229;On Yuen Co. v.Ross, 14 F. 338, 37 Cyc. 811;Opinion of the Justices,7 Mass. 523;Perkinsv.Perkins,7 Conn. 565;Pike Countyv.Spencer, 192 F. 11;Recklingv.McKinstry, 185 F. 842;Ruckerv.Bolles, 80 F. 504;Railway Co. v.Ohle,117 U.S. 123;Statev.Ross,23 N.J.L. 517;Terryv.Day, 107 F. 50;Toledo Traction Co. v.Cameron, 137 F. 55;Wetmorev.Rymer,169 U.S. 120;Wiemerv.Louisville Water Co., 130 F. 244;Williamsonv.Osenton,232 U.S. 619;WilliamsPage 564v.Mairs,72 Conn. 430; 2 Wigmore on Ev., §§1028-1030.Mr. Frederick H. WigginandMr. A.T. Batesfor defendants in error:
The plaintiff was domiciled in and was a citizen of Connecticut when the action was brought, and was not a citizen of Michigan.
It was not error to render judgment upon the pleadings as they stood.
The court did not err in ruling that the claimed running of the statute of limitations could not save this action, notwithstanding defendant's alleged failure to introduce evidence of plaintiff's citizenship until after the limitation period had expired.
The court committed no error in taking the question of jurisdiction from the jury.
The court committed no error in refusing to hear argument upon the question of jurisdiction.
The trial court did not err in admitting in evidence and considering the tax lists.
In support of these contentions, seeAndersonv.Watt,138 U.S. 694;Barnesv.Benham,75 P. 1130;Bakerv.Lee,52 Conn. 145;Banksv.Porter,39 Conn. 307;Barryv.Edmunds,116 U.S. 550;Butlerv.Farnsworth, Fed. Cas. § 2240;Briscoev.Dist. of Columbia,221 U.S. 547;Burchettv.United States, 194 F. 821;Bradishv.Grant,119 Ill. 606;Chasev.Wetzlar,225 U.S. 79,85;Columbia Heights Co. v.Rudolph,217 U.S. 547; Conn. Gen'l Stats., §§ 609, 1110, 1114, 1127, 2313, 2323; Conn. Rules of Practice, §§ 155, 155a; Conn. Rules of Court, § 12; Conn. Public Acts 1913, ch. 206;Comstockv.Waterford,85 Conn. 9; Const. Conn., Art. VIII;Davisv.Dixon, 184 F. 509;Deeringv.Halbert,12 Ky. 290;Deputronv.Young,134 U.S. 241;First National Bankv.Home Bank, 21 Wall.Page 565294;Globe Co. v.Lauder Co.,190 U.S. 540;Harrisonv.Park,24 Ky. 170;Hartogv.Memory,116 U.S. 588;Hillv.Walker, 167 F. 241, 261;Jonesv.Subera, 150 F. 462;Lloydv.Chapman, 93 F. 599;MastCo. v.Superior Co., 154 F. 45;Mitchellv.UnitedStates, 21 Wall. 352;Morrisv.Gilmer,129 U.S. 327;Olmstead's Appeal,43 Conn. 110;Pac. Mut. Ins. Co. v.Tompkins, 101 F. 539;Recklingv.McKinstry, 185 F. 842; Rev. Stat., § 997; Rule 35, Supreme Court;Robertsv.Lewis,144 U.S. 653;Rosenbaumv.Bauer,120 U.S. 450,459;Saylesv.Fitzgerald,72 Conn. 391,396;Sheltonv.Tiffin, 6 How. 185;Simpsonv.First Nat'lBank, 129 F. 257;Steiglederv.McQuestion,198 U.S. 141; 36 Stat., p. 1098, § 37;Smithersv.Smith,204 U.S. 632;Sullivanv.Iron Co.,143 U.S. 431;Wells Co. v.Gastonia Co.,198 U.S. 177,182;Wetmorev.Rymer,169 U.S. 115;Williamsonv.Osenton,232 U.S. 619,625;Williamsv.Nottawa,104 U.S. 209;Wildmanv.Ryder,23 Conn. 172; 2 Wigmore Ev., pp. 1216, 1220.
After the taking effect of the Judicial Code on January 1, 1912, the case was transferred to the District Court of the United States for the District of Connecticut. On August 26, 1912, a jury was impanelled, 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 March 3, 1875, c. 137,18 Stat. 470, 472, § 5, now § 37 of the Judicial Code, 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 districtPage 567court, 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.Deputronv.Young,134 U.S. 241,251. 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.Farmingtonv.Pillsbury,114 U.S. 138,143;Littlev.Giles,118 U.S. 596,604. The objection may be made now by answer before answering to the merits, or it may be made by motion.Steiglederv.McQuestion,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.Wetmorev.Rymer,169 U.S. 115,121. It may be raised by a general denial in the answer, where the state practice permits of that course.Robertsv.Lewis,Page 568144 U.S. 653. In the State of Connecticut, under the form of denial contained in this answer, the answer raised the issue.Saylesv.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.Wetmorev.Rymer,169 U.S. 115,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.WetmorePage 569v.Rymer,169 U.S. 115,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.Morrisv.Gilmer,129 U.S. 315.Williamsonv.Osenton,232 U.S. 619,624. 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 domicile 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 domicile has been often before this court, and was last under consideration in the case ofWilliamsonv.Osenton,232 U.S. 619,supra. In that case the definition of domicile, as defined by Mr. Dicey, in his book on "Conflict of Laws," 2d ed., 111, is cited with approval. There change of domicile 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 domicile, it is to be deemed his place of domicile, 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."Pricev.Price,156 Pa. 617,626.Page 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 domicile 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 domicile. It was his place of abode which he had no present intention of changing, that is the essence of domicile.Page 571
We find no error in the conclusion of the District Court upon the question of jurisdiction, and its judgment is thereforeAffirmed.