Shreveport Long Leaf Lumber Co. v. Wilson, Civil Action No. 362.

• Decision Date: 02 May 1941
• Docket Number: Civil Action No. 362.
• Citation: 38 F. Supp. 629
• Parties: SHREVEPORT LONG LEAF LUMBER CO., Inc., v. WILSON.
• Court: U.S. District Court — Western District of Louisiana

38 F. Supp. 629

SHREVEPORT LONG LEAF LUMBER CO., Inc., v. WILSON.

Civil Action No. 362.

District Court, W. D. Louisiana, Shreveport Division.

May 2, 1941.

Hunter & Hunter, of Shreveport, La., and Wilkinson, Lewis, Wilkinson & Naff, of Shreveport, La., for plaintiff.

Campbell & Campbell, of Minden, La., for defendant.

PORTERIE, District Judge.

The defendant has filed a motion to dismiss on the ground that there is not the necessary diversity of citizenship, since he is a citizen of Louisiana, and the plaintiff is a corporation chartered under the laws of the state of Louisiana.

There is much conflict in the considerable body of evidence furnished at the trial of the motion as to whether or not the defendant is a resident of Louisiana or of Arkansas. It is practical, therefore, before reaching the consideration of the evidence in this opinion, to determine with which side rests the burden of proof — whether it remains constantly with the plaintiff who has sought our jurisdiction in the filing of the suit, or whether it rests with the defendant who urges the want of diversity in his motion.

Without citing the supposed variations in our jurisprudence, which probably arose because of the multifariousness of the factual situations, we come directly to the case of McNutt et al. v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135, wherein Chief Justice Hughes, as the organ of the court, engages in a detailed comparative study of the apparently conflicting jurisprudence, and finally concludes for the benefit of the bench and bar with the clarifying pronunciation: "* * * The question is upon which party lay the burden of proof. Respondent contends that the burden of proving the lack of jurisdiction rests upon the party challenging the jurisdiction and cites decisions of this Court to that effect. The question is thus sharply presented." 298 U.S. at page 181, 56 S.Ct. at page 781, 80 L.Ed. 1135.

After engaging in a discussion of the applicable articles of the Judicial Code and the decisions thereunder from the year 1875 to the year 1936, the paragraph of summation is as follows:

"* * * The act of 1875 prescribes a uniform rule and there should be a consistent practice in dealing with jurisdictional questions. We think that the terms and implications of the act leave no sufficient ground for varying rules as to the burden of proof. The prerequisites to the exercise of jurisdiction are specifically defined and the plain import of the statute is that the District Court is vested with authority to inquire at any time whether these conditions have been met. They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing. If he does make them, an inquiry into the existence of jurisdiction is obviously for the purpose of determining whether the facts support his allegations. In the nature of things, the authorized inquiry is primarily directed to the one who claims that the power of the court should be exerted in his behalf. As he is seeking relief subject to this supervision, it follows that he must carry throughout the litigation the burden of showing that he is properly in court. The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof. And where they are not so challenged the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence. We think that only in this way may the practice of the District Courts be harmonized with the true intent of the statute which clothes them with adequate authority and imposes upon them a correlative duty." (298 U.S. at pages 188, 189, 56 S.Ct. at page 785, 80 L.Ed. 1135.)

See KVOS v. Associated Press, 299 U. S. 269, 57 S.Ct. 197, 81 L.Ed. 183.

Therefore, we find that the burden is with the plaintiff to show its right to our jurisdiction by the preponderance of the evidence, even though the issue was raised by the defendant in his motion to dismiss.

Wilson's citizenship in Arkansas precedes that in Louisiana, and we subscribe to the presumption that a legal domicile once gained continues until another is clearly and legally acquired. This rule is subordinate to, however, and does not change the dominant rule of the burden of proof just expressed.

The next thing at law to determine is the meaning of the word "citizen" as used in the statute conferring jurisdiction on federal courts in cases "between citizens of different states."

From 25 C.J., verbo Federal Courts, Sec. 60, p. 748, we quote: "Citizenship, with respect to the jurisdiction of the federal courts, has the same meaning as domicile, and imports permanent residence in a state with an intention of remaining. Residence alone is not the equivalent of citizenship; and citizenship in a particular state is not lost by absence therefrom, where the intention to return remains, even though such absence is protracted."

"Domicile is the test of citizenship for the purpose of the jurisdiction of the courts of the United States." Bjornquist v. Boston, etc., R. Co., 1 Cir., 250 F. 929, 933, 163 C.C.A. 179, 5 A.L.R. 951, certiorari denied 248 U.S. 573, 39 S.Ct. 11, 63 L.Ed. 427.

See, also, Simkins' Federal Practice, Sec. 86, p. 119; Delaware, etc., R. Co. v. Petrowsky, 2 Cir., 1918, 250 F. 554, 162 C. C.A. 570, certiorari denied 247 U.S. 508, 38 S.Ct. 427, 62 L.Ed. 1241.

"Citizenship" and "domicile" are synonymous. Domicile in its common meaning is residence at a particular place plus the intention of remaining at that place permanently or for an indefinite length of time. A more legally technical definition is found in 19 C.J., verbo Domicile, Sec. 1, p. 392: "Domicile is the relation which the law creates between an individual and a particular locality or country. It is the legal conception of home. The word `domicile' is derived from the Latin `domus', meaning a home or dwelling house, and no one word is more nearly synonymous with `domicile' than the word `home', which is almost always used in defining or describing the legal concept of domicile. In a strict legal sense, the domicile of a person is the place where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning."

The following quotation from the case of Greene v. Windham, 13 Me. 225, 228, is very much in line, as the facts of the case will show: "Whoever removes into a town, for the purpose of remaining there for an indefinite period, thereby establishes his domicil in that town. It is not necessary that he should go, with a fixed resolution to spend his days there. He might have in contemplation many contingencies, which would induce him to go elsewhere. Some persons are more restless in their character, and migratory in their habits than others, but they may and do acquire a domicil, wherever they establish themselves for the time being, with an intention to remain, until inducements may arise to remove."

We find that declarations made by a party as to his domicile when part of the res gestae, prior to the institution of a suit, are admissible, even when objected to because of their self-serving character. "Declarations — a. Oral. Oral declarations made by the party whose domicile is in dispute, as to the intent with which removal was accomplished, when part of the res gestae, are admissible in evidence in a contest to which he is a party. The declaration must have been made at a time when the party had no intention to make evidence and before any controversy." 19 C.J. verbo Domicile, Sec. 60. See also Gardner v. O'Connell, 5 La.Ann. 353. Our decision in this case would not be different even if all the evidence of this character were to be excluded, because the sum total of it is merely corroborative of facts which are otherwise preponderantly proved by evidence of unquestioned admissibility.

We now have to declare what were the main facts proved to the satisfaction of the court by the...