Bruton v. Shank

• Decision Date: 03 September 1965
• Docket Number: No. 17877.,17877.
• Parties: Ronald Lynn BRUTON, by his Guardian, Genevieve Bruton, Appellant, v. Dennis SHANK, by Alex K. Shank, his Guardian ad litem, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

349 F.2d 630 (1965)

Ronald Lynn BRUTON, by his Guardian, Genevieve Bruton, Appellant, v. Dennis SHANK, by Alex K. Shank, his Guardian ad litem, Appellee.

No. 17877.

United States Court of Appeals Eighth Circuit.

September 3, 1965.

Samuel W. Masten, Canton, S. D., for appellant.

J. B. Shultz, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for appellee.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

After jury trial in the court below, resulting in verdict and judgment for defendant, appellant filed motion:

"(1) To vacate the judgment based on the jury verdict * * * on the grounds that there was no diversity of citizenship (between the parties) and the Court (below) had no jurisdiction."

and

"(2) To remand (this) case to the Circuit Court of Lincoln County, South Dakota, (from whence it was removed) and to allow the plaintiff\'s costs and disbursements herein." (Pars. added.)

After hearing was duly held on that motion, remand as prayed was denied by memorandum opinion of the Honorable George T. Mickelson, (now deceased)¹ United States District Judge for the District of South Dakota, who had presided at the trial of the case at bar on its merits.

Appellant's singular assertion of error in this appeal is:

"The Court (below) erred in denying plaintiff\'s motion to set aside the jury verdict, vacate the judgment entered herein and remand (this) cause to the State Court for the reason that there was not the requisite diversity of citizenship between the parties at the commencement of (this) action to grant the Federal Court jurisdiction of the cause." (Pars. added.)

Treating the after-trial motion, ante, as one filed pursuant to Rule 60(b) (4) or (6), F.R.C.P., 28 U.S.C.A., District Judge Mickelson denied the same. (Cf. Greear v. Greear, 288 F.2d 466 (9 Cir., 1961)). We have jurisdiction to entertain this appeal from the ruling so made. (American Fire & Casualty Co. v. Finn, 341 U.S. 6, 21, 71 S.Ct. 534, 95 L. Ed. 702 (1951); Spurgeon v. Mission State Bank, 151 F.2d 702 (8 Cir., 1945); Maple Island Farm, Inc. v. Bitterling, 196 F.2d 55 (8 Cir., 1952)).

But we hasten to note that the judgment as entered on the merits of this case is not here subject to review, because no appeal was taken therefrom under Rule 73, F.R.C.P., 28 U.S.C.A. (Cf. Wagner v. United States, 316 F.2d 871 (2 Cir., 1963)).

Since the memorandum opinion of District Judge Mickelson, ruling appellant's motion, ante, was not published prior to the time of his death, the same is set forth in the footnote.² This is done because, after close perusal of the record before us, and briefs of these parties, we are convinced that Judge Mickelson, having a judicial reputation for keen legal acumen, penetrating insight and sagacity, was fully alert to, and did, intelligently adjudicate all the legal and factual issues which appellant now asserts and submits to us for review in this appeal; — particularly the issues as to whether appellee as an "emancipated youth" was a resident and did maintain a separate residence in the State of California from that of his father's residence in the State of South Dakota, when removal of the case at bar was perfected; and there was competent evidence adduced before him so to do. Such are the only matters submitted to this Court for review in this appeal.

In the record before us, it appears without dispute:

"That all claims of the plaintiff (appellant) as set forth in the affidavits (filed in support of his aftertrial) motion (ante) were known to the plaintiff (appellant) before this action was tried by (the) Court (below); that (counsel for appellee) had discussed the question of (diversity) jurisdiction (as now belatedly raised) with (appellant\'s) attorney before trial (of this case on its merits) and plaintiff\'s (i. e. appellant\'s) attorney was (then) asked if the question of jurisdiction (as now raised in this appeal) would be raised before trial and (appellee\'s counsel) was advised plaintiff intended to try (this) case without raising (such) issue; that the question of jurisdiction was not raised at (any) pre-trial conference; that the defendant (appellee) had been put to a considerable expense to return from California to South Dakota on two occasions for the purpose of * * * trial" (Pars. added.)

of the case at bar on its merits. (R., p. 26).

The foregoing matter was fully known to Judge Mickelson. We emphasize that fact because it is apparent from his opinion, ante, and the record before us as a whole, that there is no merit whatsoever in appellant's belated contention as made in the case at bar, respecting nondiversity jurisdiction.

As said by this Court in Ellis v. Southeast Construction Co., 260 F.2d 280, l. c. 281:

"Generally speaking, in order `(to) acquire a domicil of choice, the law requires the physical presence of a person at the place of the domicil claimed, coupled with the intention of making it his present home. When these two facts concur, the change in domicil is instantaneous. Intention to live permanently at the claimed domicil is not required. If a person capable of making his choice honestly regards a place as his present home, the motive prompting him is immaterial.\'"

The judgment appealed from is affirmed.

1 Judge George T. Mickelson died on March 1, 1965.

2 "This case is before the Court on plaintiff's motion to vacate a judgment for the defendant based on a verdict of the jury, and to remand to the state court where it was initially commenced. Counsel for the plaintiff argues that the requisite diversity of citizenship was not present, and thus the Court was without jurisdiction.

"The rule of law that a party can attack the jurisdiction of the Court at any time is so well established that citation of authority seems unnecessary. Indeed it has been held that the party who obtained a removal from state court can after judgment attack the same for lack of diversity jurisdiction. American Fire & Cas. Co. v. Finn, 341 U.S. 6 71 S.Ct. 534, 95 L.Ed. 702.

"It is well settled that citizenship, for the purposes of 28 U.S.C.A. § 1332, is synonymous with domicile. e. g., Russell v. New Amsterdam Casualty Company, 325 F.2d 996 (8 Cir. 1964). It is clear that what is required is one's physical presence at the place of domicile claimed and the intention of making such place his present home. Spurgeon v. Mission State Bank, 151 F.2d 702 (8 Cir., 1945). However, the intent to remain permanently at the claimed domicile is not required. Ellis v. Southeast Construction Co., 260 F. 2d 280 (8 Cir., 1958). Courts look to various factors to...