Corel v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 15 June 1903
• Citation: 123 F. 452
• Parties: COREL v. CHICAGO, R.I. & P. RY. CO.
• Court: U.S. District Court — Western District of Missouri

123 F. 452

COREL v. CHICAGO, R.I. & P. RY. CO.

United States Circuit Court, W.D. Missouri, Western Division.

June 15, 1903

Wallace Wallace & Culbertson and G. B. Silverman, for plaintiff.

F. P Sebree, for defendant.

PHILIPS District Judge.

The plaintiff has interposed a plea to the jurisdiction of the court, on the ground that at the time of the institution of the suit in the state court, and the time of its removal therefrom by the defendant to this court, the plaintiff was a citizen of Oklahoma territory, and, the defendant being a nonresident corporation of the state of Missouri, this court has no jurisdiction over the parties.

The evidence shows that the plaintiff, an unmarried man, for many years prior to July 18, 1901, was a citizen of the state of Missouri. He was a practicing dentist at Kansas City, with an office equipped with instruments and appliances for the prosecution of his profession. He and his mother and sister kept house in Kansas City, where he made his home. In connection with his sister and other parties he went to Oklahoma on the opening of that territory for the purpose of registering a number to draw a homestead, under the act of Congress opening up the territory for settlement. He made his registration on the 18th day of July, 1901, and immediately started on his return home to Kansas City. On this return trip on July 19, 1901, he received an injury by reason of a collision on the defendant's railroad, for which this action was instituted by him in the state circuit court at Kansas City, Mo., on the 29th day of November, 1902, for the recovery of the sum of $50,000 damages.

On his return to Kansas City he went to the hospital for treatment. His registered number having drawn a right of entry, he returned to Oklahoma on August 7, 1901, and on the 9th day of the month made his filing of said claim on a quarter section of land near Hobart, in said territory, and immediately returned to the hospital at Kansas City, where he remained for a short time; and then went to his home in said city where he remained until January, 1902, when he returned to said Hobart, and had a small frame house, 12 by 20, of one room, and one story high, erected on the homestead, which cost about $200, and returned to his home in Kansas City about the 7th day of February, 1902, where he remained until March 18th, and returned to Oklahoma, where he remained until April 19th, when he returned to his home in Kansas City. Excepting a part of the time when he visited a sister in Kansas, he remained in Kansas City until the 6th day of August, 1902, when he returned to Oklahoma, and remained until October the 18th. He had a friend to move into the house built on his homestead, who, with his own team, plowed about one acre of ground in connection with the house, and raised some vegetables thereon. He did not hire this tenant, nor does he seem to have had any contractual arrangement with him by which he was obligated to pay him anything for remaining there. I take it that this was done in order to carry out a simulated settlement by way of occupation of the premises, to comply with the homestead law. While on this last visit to Oklahoma plaintiff remained in this house on the premises with said occupant. He returned to Kansas City on or about October 18, 1902, to his customary home, and remained there until February 18, 1903. While so here he brought this suit in the state court on November 29, 1902, and it was removed into this court on January 12, 1903, the petition for removal alleging that he was a citizen of the state of Missouri. He returned to Oklahoma about the 18th day of February, 1903, to make his final proof under the homestead law, which was made on the 24th day of February, 1903; and on the 10th day of March, 1903, pursuant to negotiations, or a proposition of sale, made by him when he was in Oklahoma the last preceding visit, he sold his homestead claim through an agent to one Stafford, and returned immediately to Kansas City, and stayed at his usual place of residence until the 17th day of April following, which was about 10 days before the beginning of this term of court. He went to said Hobart, in Oklahoma, and boarded at a hotel, and while there invested some money, which he had recovered on some accident insurance policies growing out of said injury, in the purchase of some vacant lots in said town, bought for the purpose of speculation.

There is a marked distinction between domicile and residence. The term 'residence' simply indicates the place of abode, whether permanent or temporary; 'domicile' denotes a fixed permanent residence, to which, when absent, one has the intention of returning. A party may have different residences, but he can have but one domicile at the same time. Am. & Eng Enc. of Law, vol. 10, pp. 8,9.

In Mitchell v. United States, 21 Wall. 352, 22 L.Ed. 584, the court say:

'Domicile' has been thus defined: 'A residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.' By the term 'domicile,' in its ordinary acceptation, is meant the place where a person lives and has his home. The place where a person lives is taken to be his domicile until facts adduced establish the contrary. * * * A domicile, once acquired, is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged, the burden of proving it rests upon the person making the allegation. To constitute the new domicile two things are indispensable: First, residence in the new locality; and second, the

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