Morris v. Gilmer

• Decision Date: 28 January 1889
• Citation: 32 L.Ed. 690,129 U.S. 315,9 S.Ct. 289
• Parties: MORRIS v. GILMER
• Court: U.S. Supreme Court

9 S.Ct. 289

129 U.S. 315

32 L.Ed. 690

MORRIS v. GILMER.

January 28, 1889.

The first assignment of error relates to the action of the circuit court in overruling a motion to dismiss this suit, as one not really and substantially involving a dispute or controversy properly within its jurisdiction. On the 7th of July, 1884, the present appellee, James N. Gilmer, who was then, and during all his previous life had been, a citizen of Alabama, instituted a suit in equity, in one of the chancery courts of that state, against Josiah Morris, individually, and against Josiah Morris and F. M. Billing as composing the firm of Josiah Morris & Co., citizens of Alabama. Its object was to obtain a decree declaring that the transfer, by the plaintiff to Morris, of 60 shares of the capital stock of the Elyton Land Company, an Alabama corporation, was made in trust and as collateral security for the payment of a debt due from the plaintiff to Josiah Morris & Co.; ordering an accounting in respect to the amount of that debt, the value of the stock, and the dividends thereon received by Morris; and directing him upon the payment of the debt and interest, or so much thereof as appeared to be unpaid, to transfer 60 shares of the stock to the plaintiff, and pay over any dividends received in excess of the debt due from the latter. Besides putting in issue all the material averments of the bill, the answer relied upon laches and the statute of limitations in bar of the suit. The cause went to a hearing, upon pleadings and proofs, and on the 29th of April, 1885, a final decree was rendered dismissing the suit; the chancery court holding that the claim was barred by the statute of limitations. Upon appeal the decree was affirmed by the supreme court of Alabama on the 27th of January, 1886. That court, as appears from the opinion of its chief justice, refused to modify the decree, so as to make it a dismissal without prejudice to another suit. Gilmer v. Morris, 80 Ala. 78. The present suit was instituted, September 20, 1886, in the circuit court of the United States by Gilmer, claiming to be a citizen of Tennessee, against Morris and Billing. It relates to the same shares of stock, and the relief asked is that Morris be decreed to account for and pay over to the plaintiff all dividends paid after it came to the defendant's hands, (after deducting Gilmer's indebtedness to Morris or to Morris & Co.,) and to transfer the 60 shares of stock to the plaintiff. The defendants filed a plea setting up the final decree in the state court in bar of the present suit. That plea having been overruled, (30 Fed. Rep. 476,) they separately answered; Billing disclaiming any interest in the stock, or in the dividends thereon. The plaintiff filed a replication. Subsequently, December 16, 1887, the defendant Morris filed in the cause the affidavit of A. S. Gerald to the effect that, in a conversation held by him with the plaintiff on or about November 14, 1887, the latter informed him 'that he had returned to the city of Montgomery to reside permanently, and had been living here with that intent some time previous to said conversation;' and also his own affidavit to the effect that he had been informed and believed that the plaintiff returned to the city of Montgomery 'some time in the latter part of May or early part June, 1887, with the purpose and intent of permanently residing in the state of Alabama, and has continuously resided in said state of Alabama ever since said time.' On the 17th of November, 1887, before the final hearing of the cause, the defendants, with leave of court, filed a written motion for the dismissal of the suit, upon the ground that it did not really and substantially involve a controversy within the jurisdiction of the circuit court; basing his motion upon the above affidavits of Gerald and Morris, and upon the depositions of the plaintiff, and of his father, F. M. Gilmer, taken in this cause in behalf of the plaintiff.

The father, in his deposition taken de bene esse, October 27, 1886, makes the following statements on cross-examination: 'Question. Where does your son, J. N. Gilmer, now reside? Answer. He resides in Memphis, Tenn. Q. When did he remove there? A. I think he removed in April or May. [318]

Q. Of this year? A. Yes, sir; of this year. Q. Did he take his family with him? A. He did. Q. Did he take his furniture with him? A. He did. Q. Is not his home at present furnished with the same furniture and pictures that were in it when he was there? A. No, sir. Q. Does any one occupy his house? A. Yes, sir. Q. Who? A. Mr. Mitchell. Q. How long has he occupied it? A. I think he occupied it on the first of the month; it was rented to him the month before. Q. You think he occupied it from the 1st of October? A. Yes, sir. Q. I ask you if up to the 1st of October his furniture and effects were not in the house? A. No, sir, his effects went with him. Q. Did he remove all his furniture? A. Yes, sir. Q. Were not pictures left hanging on the wall of the house? A. No, sir. Q. Did he not move to the state of Tennessee for the purpose of bringing this suit in the United States court, and did he not so view it before he left? A. That is a question that he only can answer. I cannot answer for him. Q. I ask you if he did not tell you that his purpose in moving to Tennessee was for the purpose of bringing this suit in the United States court? A. He did not tell me that. Q. I aks you if you do not know that it was his purpose, and if it was not done under advice? A. I can tell you what I believe, but I cannot tell you what I know about it. I do not know it. Q. You say you do not know whether that was his purpose, or whether he was ever so advised? A. Well, I can say I advised him to do that. Q. Well, before his removal? A. Yes, sir. Q. How long before he removed was it that you advised him? A. Well, it was some months. Q. When did you advise him? Was it after the decision of the supreme court of Alabama in the chancery suit that you have spoken of? A. Yes, sir; it was after that. [319]

Q. I ask you if you didn't advise him to move for the purpose of bringing this suit in the United States court? A. I did. Q. And he changed his residence after that advice? A. I can say, further, that it was not the only thing that induced me to advise him. I wanted him relieved from his military occupation. I did not think that he would ever succeed in business as long as he was hanging on to a military organization, and I thought that his wife's mother lived in Memphis, and the family there were very desirous that they should go there. That was really the primary cause of my advising him, and I then suggested to him: 'If you go there, you will then have an opportunity of instituting suit,' (in United States court.) The prime object was to get him rid of all military organizations. Q. But part of the purpose was to get him so that he could institute suit in the United States court? A. Well, it was incidental. The primary purpose with me was to get him square out of the military organization. Q. Don't you know that he said his purpose in moving to Tennessee was to bring this suit in the United States court? A. I do not know that he said that. I may have heard him, but I cannot now bring it to mind. Q. Don't you know that it was his purpose to return here at the termination of this suit; don't you know this? A. I do not. Q. Do you know that he has moved to Tennessee permanently, or with a view of remaining there? A. I do not. Q. Has he gone into any business in Tennessee? A. He has. Q. What is his business? A. Cotton-ginning business. Q. On his own account? A. No, sir; in connection with others. Q. Is he proprietor or employe? A. I really do not know. Q. Do you know whether he has made any investment in Tennessee? A. I do not. Q. Have his business connections here been severed? A. Yes, sir. Q. Entirely? A. Yes, sir; entirely. Q. How long before this present suit begun did he move to Tennessee? A. I do not know when this suit was instituted, exactly; but I suppose about four or five months. Q. What month did he move away in; do you know? A. I do not bear in mind the exact date; I think it was in April. Q. Of this year? A. Yes, sir. Q. When did you say that your intimacy with Mr. Morris ceased? A. At the institution of this suit of J. N. Gilmer in the chancery court. * * * Q. That suit was commenced in the chancery court of Alabama by Gilmer, the same plaintiff, with Morris, the same defendant, and prosecuted through the chancery court, and then went to the supreme court on appeal, did it not? A. It did. * * * Q. And you were examined as a witness? A. I was. Q. Is not this a continuation of that same controversy,—that suit? A. It is a continuation of the merits of the same transaction, but it is a new controversy. Q. How old are you, Mr. Gilmer? A. I am 76 years old. Redirect examination. Q. Do you know whether J. N. Gilmer sold his residence before he left? A. He did. Q. Did he sell any other property,—did he sell his cows and horses? A. He sold everything, sir, that he didn't carry with him. Q. Before he went to Memphis? A. Yes, sir.' The plaintiff, in his deposition taken April 26, 1887, made these statements on cross-examination: 'Question. Where do you reside now? Answer. In Memphis. Q. What state? A. The state of Tennessee. Q. How long have you resided there? A. One year. Q. Did you not go there, Mr. Gilmer, for the purpose of getting jurisdiction to the federal court of this state? A. I did, sir. Q. Is it your purpose to return to Montgomery if you gain this suit? A. That depends altogether upon circumstances. Q. What circumstances? A. If inducements be offered to make it to my interest, I may. [321]

Q. Well, is there not expectation that such inducements will be offered? A. I have had inducements offered, but I have not accepted. Q. I repeat the question: Is it not your expectation that, in the event you gain this suit, such inducements will be...