McDonald v. Salem Capital Flour-Mills Co.

• Decision Date: 01 August 1887
• Citation: 31 F. 577
• Parties: McDONALD and another v. SALEM CAPITAL FLOUR-MILLS CO. and others.
• Court: U.S. District Court — District of Oregon

31 F. 577

McDONALD and another v. SALEM CAPITAL FLOUR-MILLS CO. and others.

United States Circuit Court, D. Oregon.

August 1, 1887

Syllabus by the Court

A party against whom a case has been removed from a state to a national court may contest any allegation of fact on which such removal was had, by a plea in the nature of a plea to the jurisdiction of the latter court; and this whether such allegation is contained in the pleadings proper or the petition for removal.

An averment in a plea that a party is a citizen of Oregon is not neutralized by an admission therein that such party is residing abroad. Residence is prima facie evidence of citizenship, but not conclusive; and a person may be a citizen of one state or country, and reside for the time being in another.

Primarily a person's domicile is his legal home; but domicile implies more than mere residence in a country.

A plea must be positive and direct, and not merely argumentative and when a fact is controverted simply by alleging one contradictory thereof, the plea must go further, and directly negative or traverse the facts inconsistent with the fact alleged.

A plea to the jurisdiction that one of the parties to the case is a citizen of a state other than that alleged in the petition for removal, need not be supported by an answer.

John M Bower, for Kelly and McDonald.

William B. Gilbert, for the bank and for Stuart.

DEADY J.

This suit was brought by the plaintiff, R. McDonald, in the state circuit court for the county of Marion, against the Salem Capital Flour-Mills Company, the First National Bank of Salem, the City of Salem Company, William Stuart, and James McDonald, trustee. On February 19, 1887, an amended complaint was filed, making Joseph F. Kelly a party plaintiff.

The object of the suit is to establish and enforce the alleged lien of two certain judgments in favor of the plaintiffs respectively, as the assignees of the Oregon & Washington Mortgage Savings Bank, against the defendant, the City of Salem Company, namely: A judgment obtained by McDonald in the state circuit court for the county of Multnomah, on December 6, 1886, for $14,368.22, and one obtained by Kelly in the same court on April 3, 1886, for $12,771.50,-- and to that end to set aside, as so far null and void, certain mortgages and conveyances of the property of said City of Salem Company, executed to certain of the defendants after the existence of the indebtedness on which said judgments were given, namely: A mortgage to William Stuart of August 2, 1883, to secure the sum of $71,940; a conveyance on June 10, 1884, of all the property of said company to James McDonald, in trust for the Salem Capital Flour-Mills Company, and a conveyance of the same by the former to the latter on July 1, 1884; and a mortgage by the flour-mills company on November 17, 1886, to the defendant, the First National Bank of Salem, to secure the sum of $30,000.

On February 21, 1887, the defendant the bank filed a petition and bond for the removal of the cause, and on the twenty-fourth of the same month an order was made to that effect in the state court. In this court the bank had leave on April 29th, to file an amended petition for removal, from which it appears that the petitioner is a corporation organized under the national banking act of the United States, having its principal place of business at Salem, Oregon; that Joseph F. Kelly is a citizen of Rhode Island, residing in London, England; that R. McDonald is a fictitious person; that the Salem Capital Flour-Mills Company is a corporation organized under the law of Great Britain; that the City of Salem Company is a corporation formed under the law of Oregon; and William Stuart and James McDonald are British subjects. And from said petition and the complaint herein it also appears there is a controversy involved in the suit which is wholly between citizens of the United States,-- the...