Stine v. Moore
| Decision Date | 09 June 1954 |
| Docket Number | No. 14933.,14933. |
| Citation | 213 F.2d 446 |
| Parties | STINE v. MOORE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joe J. Tritico and George W. Liskow, Lake Charles, La., for appellant.
S. W. Plauche, Jr., Plauche & Plauche, Lake Charles, La., for appellee.
Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and WRIGHT, District Judge.
This is an action for damages for the alleged breach of a contract with reference to the rental of land. The amount involved exceeds three thousand dollars, exclusive of interest and costs, and federal jurisdiction is based solely upon diversity of citizenship between the parties. The complaint alleged that the plaintiff was a citizen of Louisiana, residing in the Lake Charles division of the Western District thereof, and that the defendant was a citizen and resident of Texas. The defendant, appearing in person and by attorney, moved to dismiss the action for lack of the requisite diversity of citizenship. Contrary to the allegations of plaintiff's complaint, the defendant alleged that he was a citizen of Louisiana and resided in the same parish in which the plaintiff had his domicile.
The issue as to the defendant's citizenship being joined and trial had thereon, the court below sustained the motion to dismiss and entered judgment accordingly, from which this appeal was taken. There was ample evidence to sustain the court's finding that the defendant was a citizen of Louisiana. In addition, the court wrote an opinion on the law of the case that needs no elaboration on our part. We fully concur both in its findings of fact and conclusions of law, which in substance were as follows:
The burden of proving diversity jurisdiction, when challenged, is upon the plaintiff; but when it is shown, as in this case, that the appellant had a former domicile in Texas, the presumption is that it continues to exist, and the burden shifts to the defendant to prove that it has changed. It is not disputed that, until the year 1947, following his marriage in 1946, the defendant resided and had his domicile in Orange, Texas. Since then he has done many things which, on their face, tend to support the conclusion that he intended to retain his domicile in Texas, such as paying poll taxes and voting in that state, making returns and paying Louisiana income taxes as a non-resident, maintaining a residence and post-office box through which he received some of his mail at his former address in Orange, Texas, and making his federal income-tax returns from that address. Nevertheless, he did move to Louisiana with the bona fide intention of remaining there permanently, which is the true test; and he has, beyond question, continued to live at Gum Cove plantation in Cameron Parish, Louisiana, since moving there in 1947. He and his wife both testified that they made this change on the advice of appellant's doctor, and expect to continue there "from now on out." The house in Orange, which he still...
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In re Orso, Bankruptcy No. 94-11491.
...209 La. 495, 24 So.2d 875 (La. 1946). 32 See Successions of Rhea, 227 La. 214, 78 So.2d 838, 844 (1955). 33 Id. 34 See Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954). 35 See La. Civ.Code art. 36 See La. Civ.Code art. 41. 37 See La. Civ.Code art. 42. 38 See La. Civ.Code art. 43. 39 See De......
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...where a person has his permanent place of abode and to which he has the intention of returning whenever absent therefrom. Stine v. Moore, 213 F.2d 446 (5th Cir. 1954). It appears clear that an otherwise non-citizen of a state does not acquire a domicile, and hence citizenship, in a state me......
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