Carson v. Dunham

• Decision Date: 25 April 1887
• Citation: 121 U.S. 421,30 L.Ed. 992,7 S.Ct. 1030
• Parties: CARSON v. DUNHAM
• Court: U.S. Supreme Court

121 U.S. 421

7 S.Ct. 1030

30 L.Ed. 992

CARSONv.DUNHAM.

April 25, 1887.

[ James Lowndes, Clarence A. Seward, A. G. Magrath, and H. E. Young, for appellant.

Wm. E. Earle, for appellee.

WAITE, C. J.

This is an appeal under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) from an order of the circuit court remanding a suit which had been removed from a state court.The record shows that on the eleventh of August, 1886, C. D. Dunham, the appellee, filed a bill in equity in the court of common pleas of Berkeley county, South Carolina, against Caroline Carson, to foreclose a mortgage made by William McBerney and Alfred L. Gillespie to Edmund Hyatt, which had been assigned to Dunham.It is alleged that Mrs. Carson is in possession of the mortgaged property, and that she and the plaintiff are the only necessary parties to the suit.Service was made on Mrs. Carson by publication, for the reason, as shown by affidavit, that she did not reside in South Carolina, but in Rome, Italy.On the ninth of October, 1886, which was the day service on her was completed, she entered her appearance by counsel, and at the same time filed her petition for the removal of the suit to the circuit court of the United States for the district of South Carolina, on the following grounds: '(1) That all the matters therein had been already adjudged in her favor by the circuit court of the United States for the district of South Carolina; (2) that the complainant is barred of his present action by a judgment of the said court in her favor on the matter in controversy; (3) that this court is without jurisdiction, because a prior suit on the like matter is pending in the aforesaid court of the United States, which, by its receiver, has possession of the subject-matter of this suit; (4) that the bond and mortgage sued on are void under the laws of the United States; (5) that the defendant holds title to Dean Hall plantation, the property involved in this suit, and mentioned in the complaint in the above-entitled suit, under an authority exercised under the United States, to-wit, under a conveyance from the United States marshal for the district of South Carolina, made under decree of the United States circuit court for the said district, all of which will more fully appear by her answer.The controversy in said suit is also wholly between citizens of different states, viz., between the said C. T. Dunham, who, as your petitioner is informed and avers, was, at the commencement of said suit, and now is, a citizen of the state of South Carolina, and your petitioner, who was, at the commencement of said suit, and now is, a citizen of the state of Massachusetts; or the controversy in said suit is wholly be- tween Mary A. Hyatt, who was, at the commencement of said suit, and now is, a citizen of the state of New York, and who is the sole and only real party in interest in said suit and in said controversy, and your petitioner, who was, at the commencement of the said suit, and now is, a citizen of the state of Massachusetts, and which controversy is the only controversy in said suit; that the said Mary A. Hyatt is the real partyplaintiff in said suit, and the said C. T. Dunham is but a nominal and colorable plaintiff, and that his name has been used merely for the purpose of defeating the jurisdiction of the circuit court of the United States for the district of South Carolina, and that said suit is in fact a controversy wholly between the said Mary A. Hyatt and your petitioner, notwithstanding the assignment to the said C. T. Dunham in the complaint in said suit mentioned.'

This suit was entered in the circuit court on the twenty-sixth of October, 1886, and the next day Mrs. Carson filed in that court an answer to the bill, in which she set up title in herself to the mortgaged property by reason of a purchase at judicial sale under a decree of the circuit court of the United States, affirmed by this court, (McBurney v. Carson, 99 U. S. 567,) in a suit for the foreclosure of a mortgage belonging to her, superior in lien to that in favor of Hyatt.The particulars of her title, as stated in the answer, will be found reported in Carson v. Hyatt, 118 U. S. 279, 6 Sup. Ct. Rep. 1050, (decided by this court at the last term.)The claim is that Dunham is estopped by this foreclosure from denying the validity of the mortgage held by Mrs. Carson, and its priority in lien to that on which his suit was brought.The answer also sets up as a bar to this suit a decree in the suit of Carson v. Hyatt, supra, after it was removed to the circuit court of the United States under the order of this court, dismissing the bill on the discontinuance of the complainant therein, from whom Dunham claims title by assignment since the rendition of that decree.The answer also contains these further defenses: '(17)The defendant avers that a suit is now pending in this court wherein all the issues involved in this action are raised; that the said suit was begun before this present suit; and that this court obtained jurisdiction thereof before any court obtained jurisdiction in this present suit, and she says that, by reason of the said suit, the court of common pleas of Berkeley county then had and now has no jurisdiction of this action.(18) When the bond and mortgage which the complainant is seeking to enforce were executed to the said Edmund Hyatt, the said Edmund Hyatt was a citizen and a resident of the state of New York, a loyal state, and the obligors of the said bond, and the makers of the said mortgage, were citizens of the state of South Carolina, which was then in rebellion against the United States; and this defendant avers that the said bond and mortgage were void under the laws of the United States.'

On the eleventh of November, Dunham filed in the circuit court an answer to the petition of Mrs. Carson for removal, in which he denied that he was a citizen of South Carolina, and averred that he was a citizen of the same state with her, namely, Massachusetts.The issue made by this answer was set down for trial in the circuit court, accompanied by an order 'that on such trial the burden shall be upon the defendant, a roline Carson, to show that the plaintiff, C. T. Dunham, is not a citizen of Massachusetts.'Upon this trial it was substantially admitted that Dunham was at the commencement of the suit a citizen of Massachusetts, and thereupon the suit was remanded.From an order to that effect this appeal was taken.

The circuit court did not err in holding that the burden of proof was on Mrs. Carson to show that Dunham was not a citizen of Massachusetts.As she was the actor in the removal proceeding, it rested on her to make out the jurisdiction of the circuit court.Dunham having denied that he was a citizen of South Carolina, as she had stated in her petition, and having claimed that he was in fact a citizen of Massachusetts, the same as herself, the affirmative was on her to prove that hes claim was not true, or, in other words, that he was a citizen of another state than her own.The fact that the suit had actually been entered in the circuit court did not shift the burden of proof.It was decided in Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799, that all issues of fact made on a petition for removal must be tried in the circuit court.The matter stood for trial in the circuit court, therefore, precisely the same as it would if the law had required the petition for removal to be filed there instead of in the state court, and Mrs. Carson had been called on to prove the facts on which her right of removal rested.The evidence showed conclusively that Dunham was a citizen of the same state with Mrs. Carson, and consequently the suit was properly remanded, so far as that ground of removal was concerned.The fact, if it be a fact, that the assignment of the mortgage to Dunham was colorable only, and made for the purpose of preventing...