302 F.2d 421 (8th Cir. 1962), 16902, Janzen v. Goos

Docket Nº:16902.
Citation:302 F.2d 421
Party Name:Irene A. JANZEN, Administratrix of the Estate of Waldo R. Janzen, Deceased, Appellant, v. Wilber W. GOOS and Ivan Gottula, Appellees.
Case Date:April 27, 1962
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 421

302 F.2d 421 (8th Cir. 1962)

Irene A. JANZEN, Administratrix of the Estate of Waldo R. Janzen, Deceased, Appellant,


Wilber W. GOOS and Ivan Gottula, Appellees.

No. 16902.

United States Court of Appeals, Eighth Circuit.

April 27, 1962

Page 422

[Copyrighted Material Omitted]

Page 423

Donald P. Lay, Omaha, Neb., made argument for the appellant and John J. Higgins, Jr., Omaha, Neb., was with him on the brief.

Morris J. Bruckner, Omaha, Neb., made argument for the appellee and Robert S. Finn, Tecumseh, Neb., was with him on the brief.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HENLEY, District Judge.

BLACKMUN, Circuit Judge.

This action was dismissed for lack of diversity jurisdiction. The plaintiff has appealed.

The suit presumably brought pursuant to §§ 30-809 and 30-810, R.R.S.Nebraska 1943, on behalf of a decedent's widow and six minor children, as next of kin, is for the alleged wrongful death of the decedent on November 20, 1960, resulting from injuries sustained in a Nebraska automobile accident. The complaint, by the widow as special administratrix 1 of her husband's estate, alleges that she is a citizen of Kansas, that the two defendants are citizens of Nebraska, and that the amount in controversy exceeds the minimum specified by 28 U.S.C.A. § 1332, as amended to date. Each of the defendants, prior to filing an answer, moved that the action be dismissed for lack of the requisite diversity of citizenship. Their motions were sustained.

At the hearing on the motions no witness testified. The parties stipulated, 2 however, (a) that the decedent was a resident of Richardson County, Nebraska; (b) that he died in that state on November 20, 1960, as a result of injuries received in an accident; (c) that on February 9, 1961, the plaintiff was the widow of the decedent and was a citizen and resident of Stella, Nebraska; (d) that on that date she filed in the County Court of Richardson County, Nebraska, a petition for her appointment as administratrix of her husband's estate; (e) that on March 6, 1961, the plaintiff was appointed as such administratrix; (f) that letters of administration were issued to her by that court on March 15, 1961; (g) that on May 17, 1961, the plaintiff

'moved with her entire family to 809 East 6th Street, Newton, Kansas. She was living there with her family on July 14, 1961, and if permitted to testify would testify that she was living there with the intention of residing there permanently';

(h) that the complaint in the present action was filed in the United States District Court for the District of Nebraska on July 14, 1961; (i) that at that time the plaintiff was still serving in the capacity of Nebraska administratrix; and (j) that on July 18, 1961, as administratrix, she filed an inventory in the estate listing as its only asset the claim of the heirs and next of kin of the decedent for his alleged wrongful death.

The absence of findings. The trial court made no findings of fact. The determination of citizenship, however, is 'a mixed question of law and of fact, but mainly one of fact'. Maple Island Farm v. Bitterling, 8 Cir., 1952, 196 F.2d 55, 59, cert. den. 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648; Welsh v. American Surety Co. of New York, 5 Cir., 1951, 186 F.2d 16, 18. Although findings, therefore, would have been helpful, we note that the motions to dismiss were obviously

Page 424

presented under Rule 12(b), F.R.Civ.P., 28 U.S.C.A., and that, by the very provisions of Rule 52(a), 3 findings are not now required with respect to a Rule 12 motion. While there have been intimations that this language of Rule 52(a) is to be limited to situations where only questions of law are involved, Moore's Federal Practice (2d Ed.), Vol. 5, Par. 52.08, p. 2673, we nevertheless conclude that, inasmuch as a full understanding of the question presented is to be had in this case without the aid of separate findings, remand for appropriate findings is not required here. Sbicca-Del Mac v. Milius Shoe Co., 8 Cir., 1944, 145 F.2d 389, 400; Aetna Life Ins. Co. v. Meyn, 8 Cir., 1943, 134 F.2d 246, 249; Yanish v. Barber, 9 Cir., 1956, 232 F.2d 939, 947; Urbain v. Knapp Brothers Manufacturing Company, 6 Cir., 1954, 217 F.2d 810, 816, cert. den. 349 U.S. 930, 75 S.Ct. 772, 99 L.Ed. 1260; Moore's Federal Practice (2d Ed.), Vol. 5, Par. 52.06(2), pp. 2262-4, Par. 52.10, p. 2676.

Construction of 28 U.S.C.A. § 1332. Statutes conferring diversity jurisdiction upon the federal courts are to be strictly construed. Thomson v. Gaskill, 1942, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951; Indianapolis v. Chase National Bank, 1941, 314 U.S. 63, 76, 62 S.Ct. 15, 86 L.Ed. 48; Healy v. Ratta, 1934, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248. Consequently, 'if a plaintiff's allegations of jurisdictional facts are challenged by the defendant, the plaintiff bears the burden of supporting the allegations by competent proof'. Thomson v. Gaskill, supra, p. 446 of 315 U.S., p. 675 of 62...

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