196 F.2d 55 (8th Cir. 1952), 14455, Maple Island Farm v. Bitterling

Docket Nº:14455.
Citation:196 F.2d 55
Case Date:April 24, 1952
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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196 F.2d 55 (8th Cir. 1952)




No. 14455.

United States Court of Appeals, Eighth Circuit.

April 24, 1952

As Corrected May 8, 1952.

Rehearing Denied May 13, 1952.

Pierce Butler, St. Paul, Minn. (M. J. Doherty and Doherty, Rumble, Butler & Mitchell, St. Paul, Minn., on the brief), for appellant.

Warren E. Burger, St. Paul, Minn. (Roland J. Faricy and Faricy, Burger, Moore & Costello, St. Paul, Minn., on the brief), for appellee

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal by the defendant from a judgment for the plaintiff in an action for damages for breach of two contracts. Jurisdiction is predicated upon diversity of citizenship. 28 U.S.C.A. § 1332. At this time the question of the jurisdiction of the district court only is presented for determination.

In his amended complaint the plaintiff alleged 'That the plaintiff is a citizen of the State of Oklahoma and that the defendant is a corporation organized and existing under the laws of Minnesota having its principal offices at Stillwater, Minnesota. That the amount in controversy, exclusive of interest, exceeds the sum or value of Three Thousand Dollars ($3, 000.00) and is between citizens of different states.'

In its answer defendant alleged that '* * * it is without knowledge or information sufficient to form a belief as to the citizenship of plaintiff or diversity

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of citizenship as between plaintiff and defendant.'

The case was tried to the court without a jury, and at the conclusion of the trial the court made findings of fact, filed an opinion and entered judgment for the plaintiff. The court found: 'Plaintiff is a citizen of the State of Oklahoma and of the United States of America', and that the court has jurisdiction of the parties and of the causes of action. In its opinion the court said: 'The plaintiff is a citizen of Oklahoma, but has devoted about fifteen years to business in Mexico, Venezuela and other South and Central American countries * * *.'

The defendant then moved that the finding of the court be amended to read: 'Plaintiff is a citizen of the United States of America but not of any State thereof * * *'; and to substitute in lieu of the court's conclusion of the law the following: 'The court is without jurisdiction of the subject matter of this action.' The defendant moved further that if its motions to amend be granted the judgment be vacated and the action dismissed. These motions were overruled and the defendant appealed.

It is conceded that the defendant is a Minnesota corporation. The defendant concedes also that the plaintiff is a citizen of the United States. The sole question on jurisdiction is whether the court erred in holding that the plaintiff is or was at the commencement of this action a citizen of Oklahoma. It is contended:

First, that the evidence is insufficient to show that plaintiff ever was a citizen of Oklahoma, and

Second, that the evidence clearly demonstrates that if plaintiff ever was a citizen of Oklahoma, he lost that citizenship by establishment of a domicile in Caracas, Venezuela, many years before the commencement of this action.

The plaintiff, Walter Bitterling, was born in Montana. He was 45 years of age at the time of the trial of this case. He had lived in North and South Dakota, Illinois, Alabama and Oklahoma. He attended grade school and high school in Oklahoma. After leaving high school he studied Spanish in the Central High School at Tulsa, Oklahoma. He was also trained in stenography. In 1934 he was a stenographer and secretary for a business firm in Tulsa.

In 1934 he was employed by the Carter Oil Company of...

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