Gilmer v. City of Grand Rapids

• Decision Date: 14 June 1883
• Citation: 16 F. 708
• Parties: GILMER v. CITY OF GRAND RAPIDS.
• Court: U.S. District Court — Western District of Michigan

16 F. 708

GILMER v. CITY OF GRAND RAPIDS.

United States Circuit Court, W.D. Michigan.

June 14, 1883

A. T McReynolds and N. A. Earle, for plaintiff.

J. W Ransom, for defendant.

WITHEY J.

The defendant applies for a new trial upon substantially the following grounds:

(1) Because the court refused to admit in evidence, in bar of the action, the records and files of this court in a suit between the same parties, for the same cause, tried at the last preceding term of court. (2) For error in ruling, under the plea in abatement, that the burden of proof is on defendant to show that plaintiff and defendant are citizens of the same state. (3) Verdict contrary to the law and evidence.

With the plea of the general issue was filed a plea to the jurisdiction, according to the practice in the state courts setting up that both parties were citizens of the same state to-wit, the state of Michigan. A former action between these parties, for the same cause, was tried in this court at the last preceding term thereof. The declaration in that suit averred that the plaintiff therein was then a citizen of Indiana, and that the defendant was a municipal corporation and citizen of Michigan. To such declaration a plea to the jurisdiction, on the ground of the citizenship of the parties, was interposed, and the jury found in favor of the plea that the parties were citizens of the same state. Judgment was ordered to be entered in accordance with the verdict of the jury. The present suit was commenced some few months subsequent to the verdict and judgment in that action. The declaration avers that plaintiff is now a citizen of Wisconsin, and that the defendant is a citizen of Michigan. As before stated, the plea again raised the question of the citizenship of the plaintiff. On the trial it appeared by the evidence, or was conceded, that the plaintiff was, at the time the cause of action accrued, a resident of this state; that he went to Indiana a short time before the first suit was begun; that after the trial and verdict in that action plaintiff left the state of Michigan and went to Wisconsin with his family, since which time he had continued to reside there. This suit was begun about five months subsequent to plaintiff's removal to Wisconsin, and subsequent to the time of the trial of the former case. Notice is given in the pleadings that defendant will, on the trial, show the former verdict and judgment in bar of plaintiff's present action. When the files and records in the suit were offered, it was held they were irrelevant and inadmissible, for the reason that they would constitute no bar to this action. The question was not in issue in this suit whether the plaintiff, at the time of commencing that suit, was a citizen of the state of Indiana or of the state of Michigan. The declaration in this suit avers that the plaintiff 'is a citizen of the state of Wisconsin;' the plea avers that the plaintiff was not, at time of the commencement of this suit, a citizen of the state of Wisconsin, but a citizen of the same state as was the defendant.

There are many decided cases holding that whenever the jurisdiction depends upon the citizenship of the parties, it is governed by their state or condition at the time of beginning their suit. Two early decisions, which have been followed by many others, especially in the circuit courts, are Mollan v Torrance, 9 Wheat. 537, and Conolly v. Taylor, 2 Pet. 556. The fact that in the former suit the jury found that the plaintiff, when he commenced that suit, was a citizen...