Marks v. Marks

• Citation: 75 F. 321
• Parties: MARKS et al. v. MARKS et al. MARKS v. GHOLSON et al.
• Decision Date: 24 June 1896
• Court: United States Circuit Court, District of Tennessee

75 F. 321

MARKS et al. v. MARKS et al.

MARKS v. GHOLSON et al.

United States Circuit Court, D. Tennessee.

June 24, 1896

R. H Burney for plaintiffs.

W. L Granbery, for defendants.

CLARK District Judge.

Mr Hunt, father of Mrs. Gholson, removed from Tennessee to Texas when a boy, became a citizen of Texas, and married there. Of the children of this marriage, only one survived infancy that being Mrs. Gholson. Mrs. Gholson was born in 1865, and, after the time of her birth, her father and mother, having no house of residence, lived in boarding houses and hotels, not residing in any particular town or county, and not possessing a fixed place of residence or municipal domicile. Mrs. Gholson's mother died when she was 6 or 7 years old, after which the father and child resided part of the time in Tennessee and part in Texas, the mode of residence continuing to be without a fixed domicile. Texas continued to be the state of Hunt's domicile. Mrs. Gholson's father died when she was about 15 years of age, and she seems to have received the principal part of her education at Nashville, Tenn. She was traveling in Europe in 1888, when she met Arthur Marks, at Berlin, he being then in the diplomatic service of the United States. They became engaged, and were married in November, 1888, in Scotland. Mr. Marks, resigning the consular clerkship, returned to the home of his father, Ex-Governor Marks, and took up his residence at the father's home, 'Hundred Oaks,' at Winchester, Tenn. Mr. Marks, her first husband, died in September, 1892, and left, surviving him, one child of the marriage, Albert S. Marks, Jr. In the progress of events not necessary to be detailed, Albert D. Marks became trustee by deed of all the estate of his brother Arthur, which consisted almost entirely of the personal estate received by him in his marital right by the marriage with Miss Hunt. After the death of her husband, Arthur H. Marks, the widow spent her time at various places, but treated Hundred Oaks as her home. Texas was her domicile or origin or nativity. Finally, influenced by reasons not necessary to be given, she determined to remove to the state of Texas with her child, still an infant, and make that state her permanent home. Accordingly, May 1, 1895, she left Tennessee for Texas, in company with Mrs. Pettus, who was her traveling companion, taking with her the child. She did not, when leaving Tennessee, contemplate locating at any particular place. Her father owned at the time of his death a considerable landed estate in Texas, in different counties, consisting mainly of grazing and timber lands. It is reasonably certain that her intention was then to live with her child, and go from place to place, without a fixed residence, and probably at places convenient to her real estate. She was at the time engaged to be married to Mr. Gholson, who subsequently became her second husband, but marriage was not contemplated by her sooner than in the fall of the same year, no date having been fixed. It is conceded that her intention to leave Tennessee, and to remove permanently to the state of Texas, was deliberate and final, and no question is made as to citizenship so far as the necessary intention is concerned. Reaching Texarkana, May 3, 1895, she expressed herself to Mrs. Pettus as pleased at then being a citizen of Texas, though there and at other places she registered at the hotels as from Tennessee. Her point of destination, as called for by her railway ticket, was San Antonio, at which place she arrived May 5, 1895; and it was her intention to go from San Antonio to Goliad with Mrs. Pettus, but there was no intention of establishing a home at Goliad, nor of remaining there except for a short while. Mr. Gholson joined her on the way. When they reached Texarkana, Mr. Gholson began to urge on Mrs. Marks the subject of an immediate marriage. She insisted that the marriage should not occur earlier than in the fall. On reaching San Antonio, he renewed the subject, and she finally consented, and they were married in the afternoon of May 5, 1895. It appears that her consent to the somewhat sudden marriage was obtained only a short time before, say one hour. As a condition on which Mrs. Marks consented to the marriage, she exacted of Gholson a promise that he would make Texas permanently his home. No reason is assigned for bringing about the marriage earlier than was contemplated, except that Mr. Gholson says, when she insisted on waiting until fall, he did not know what to expect. I think it may be inferred that Mr. Gholson was undecided as to whether he would remove to Texas, and what his other plans would be, until the question of whether the marriage would take place was a settled one.

On September 13, 1895, Albert D. Marks, a citizen of Tennessee, as trustee, filed a bill in the chancery court at Winchester, Tenn., against Mrs. Gholson, her husband, and the minor child, alleging that they were nonresidents of the state of Tennessee, and residents of the state of Texas, and making as defendant, also, Roy Fitzpatrick, a citizen of Tennessee, alleged to be the regular guardian of the infant, Albert S. The purpose of this suit was to surrender the trust, with a final account. On the same day, Albert S. Marks, the infant, by his next friend, Mr. Gholson, filed a bill in the United States circuit court at Nashville, Tenn., suing as a citizen of Texas, against Albert D. Marks and his mother, Mrs. Novella Marks, citizens of Tennessee. Both bills are substantially for the same purpose, though not entirely so. Neither in the oral arguments nor briefs is there any reference to the presence of Fitzpatrick as affecting the question of jurisdiction by removal. This point is reserved for specific inquiry, which, upon the authority of cases like Morris v. Gilmer, 129 U.S. 315, 9 Sup.Ct. 289, the court must make for itself. It is a case where the jurisdiction is concurrent in state and federal courts. The bill was filed in the chancery court, at Winchester, at 7:30 o'clock a.m., while the precise time of filing the bill in the United States circuit court is not indicated by the clerk. The suit in the state court has been removed into the United States court on petition of the nonresidents. The petition alleges that Roy Fitzpatrick is not the regular guardian of the infant, Albert, and sets out reasons on which it is assumed that the order of appointment is void. Issue is taken on the petition for removal so far as it alleges the Texas citizenship of the child, Marks; and, by plea in abatement to the jurisdiction of the suit instituted in this court, the same issue is made as to the citizenship of the child, and the cases are now heard upon these questions of jurisdiction only. It does appear that Mrs. Marks, with the child, was in Texas on the 3d, 4th, and until the afternoon of the 5th of May, 1895, before the second marriage; and the question is, had she effected during that time a change in citizenship of herself and child?

The constitution of the United States (article 3, Sec. 2) declares that the judicial power of the United States shall extend, among other cases, 'to controversies between citizens of different states. ' And the various judiciary acts of congress in carrying out this provision of the constitution have conferred jurisdiction on the circuit courts, limited in the terms of the constitution to suits 'between citizens of different states,' further restricting the jurisdiction to 'suits of a civil nature at common law or in equity,' and restricting the jurisdiction also in respect to the sum or value of the matter in dispute. And as the jurisdiction of the circuit courts is limited in the sense that such courts have no jurisdiction, except that conferred by the constitution and laws of the United States, the ruling has been such from the beginning as to require that the jurisdiction should clearly and distinctly appear from the record without argument or inference, the presumption being that a case is without the jurisdiction of the circuit court unless the contrary affirmatively appears. Robertson v. Cease, 97 U.S 646; Brown v. Keene, 8 Pet. 112; Anderson v. Watt, 138 U.S. 694, 11 Sup.Ct. 449. Persons may be citizens of the United States without being citizens of any state. Slaughterhouse Cases, 16 Wall. 36; U.S. v. Cruikshank, 92 U.S. 542. Citizenship, in relation to the federal judiciary, must be of that kind which identifies the party with some particular state of which he is a member. Butler v. Farnsworth (1821) 4 Wash. C.C. 101, Fed.Cas.No. 2,240; Morris v. Gilmer, 129 U.S. 315, 9 Sup.Ct. 289; Mitchell v. U.S., 21 Wall. 350. To constitute citizenship of a state in relation to the judiciary acts requires-- First, residence within such state; and, second, an intention that such residence shall be permanent. In this sense, state citizenship means the same thing as domicile in its general acceptation. The act of residence does not alone constitute the domicile of a party, but it is the fact of residence, accompanied by an intention of remaining, which constitutes domicile. The distinction between domicile and mere residence may be shortly put as that between residence and animo manendi and residence animo revertendi. Morris v. Gilmer, Mitchell v. U.S., Butler v. Farnsworth, supra; Doyle v. Clark, Fed. Cas. No. 4,053. Mere residence may be for a transient purpose, as for business, for a fixed period, or limited by an expected future event, upon the happening of which there is a purpose to return or remove. The two elements of residence, and the intention that such residence shall be permanent, must concur to make citizenship. It has consequently been held from the beginning that an averment of residence is not the equivalent of an averment of citizenship...