Stockyards Nat. Bank of South Omaha v. Bragg

• Decision Date: 22 October 1923
• Docket Number: 6383.,6379
• Citation: 293 F. 879
• Parties: STOCKYARDS NAT. BANK OF SOUTH OMAHA v. BRAGG et al. BRAGG et al. v. STOCKYARDS NAT. BANK OF SOUTH OMAHA.
• Court: U.S. Court of Appeals — Eighth Circuit

293 F. 879

STOCKYARDS NAT. BANK OF SOUTH OMAHA v. BRAGG et al.

BRAGG et al. v. STOCKYARDS NAT. BANK OF SOUTH OMAHA.

Nos. 6379, 6383.

United States Court of Appeals, Eighth Circuit.

October 22, 1923

P. T Farnsworth, Jr., of Salt Lake City, Utah (Henry E. Maxwell of Omaha, Neb., Waldemar Van Cott, of Salt Lake City, Utah and Edgar M. Morsman, Jr., of Omaha, Neb., on the brief), for Stockyards Nat. Bank.

H. C. Brome, of Basin, Wyo. (Thomas M. Hyde, of Basin, Wyo., and W. T. Gunter, of Salt Lake City, Utah, on the brief), for Bragg and others.

Before LEWIS, Circuit Judge, and VAN VALKENBURGH and KENNEDY, District judges.

LEWIS Circuit Judge.

This suit was brought February 17, 1922, by the Stockyards National Bank of South Omaha, Nebraska, to foreclose a mortgage on real estate in Salt Lake City, to sell that real estate under the order and direction of the court for the purpose of paying the mortgage debt, to impound the rentals to accrue pending the cause and to appoint a receiver to take immediate possession of the property, with power to collect and hold the rents and profits for application in payment of the debt. The defendants are several persons in actual possession, alleged to be residents and citizens of Utah, and also the mortgagors, Robert R. Bragg, his wife, his two brothers, his sister and his mother, all of whom are alleged to be citizens and residents of the State of Wyoming.

The complaint thus made a case within the jurisdiction of the court under section 57 of the Judicial Code (Comp. St. Sec 1039). Greeley v. Lowe, 155 U.S. 58, 15 Sup.Ct. 24, 39 L.Ed. 69; Texas Co. v. Central Fuel Oil Co. 194 F. 1, 114 C.C.A. 21; Kentucky Coal Lands Co. v. Mineral Development Co., 219 F. 45, 133 C.C.A. 151. But the defendant Robert R. Bragg, by his separate verified answer filed March 31, 1922, in addition to affirmative defenses which he set up, challenged the jurisdiction of the court over the controversy, by plea alleging that he was not then, nor at the time of the commencement of the suit, a citizen and resident of the State of Wyoming, but to the contrary he alleged the fact to be that he was at the time of the commencement of the suit and ever since had been a citizen and resident of the State of Nebraska, the same State of which the complainant was a citizen and resident; and the other defendants in their separate answers made the same challenge. This, if true, ousted the court of jurisdiction over the controversy. Cases supra. For the purpose of avoiding the useless expense of a trial on the merits, if the court was without jurisdiction, it was stipulated that the pleas to jurisdiction should be heard and determined before going to trial on the merits. All of the testimony bearing upon the preliminary inquiry was taken and submitted in depositions, and on its consideration the court on June 9, 1922, overruled the pleas and the case went to trial. From final decree both parties have appealed, the mortgagors, defendants below, assigning as error, among others, the action of the court in finding that Robert R. Bragg was a citizen and resident of Wyoming and not a citizen and resident of Nebraska at the time the suit was instituted. We are constrained to hold that the finding of the trial court on that subject is against the great weight of the testimony, and is without support. In our opinion there is no room for doubt, that before the suit was brought Robert R. Bragg had abandoned his home and residence in Wyoming and had become a resident of Omaha, Nebraska, with the intention of permanently remaining there. His testimony was this: At the time his deposition was taken, April 17, 1922, he and his wife were living at 2123 Cass Street, Omaha, keeping house there. They had resided at that number since March 10th. They had no children. Up to December 22, 1921, they resided at No Wood, Wyoming. At that time he was acting postmaster there and had had charge of the office for more than a year. He was experienced in and well understood the live stock business and had determined in December, 1921, to make Omaha his residence and there engage in that business as the employe of others at the Omaha Stockyards. Before leaving No Wood on December 22d he had made application to Swift & Co. and Armour & Co. for employment at Omaha in the live stock business. On that day he and his wife left No Wood for Burlington, Iowa, to spend the Christmas holidays, with no intention of returning to No Wood to reside, but with the intention of going from Burlington to Omaha and residing permanently at the latter place. About the middle of January, leaving his wife at Burlington until he could conveniently arrange to take her to Omaha, he went back to No Wood to turn the postoffice over to another man. After he had done so and had sold the furniture which he had used in housekeeping at No Wood he then left No Wood and reached Omaha on February 10th, and has remained there ever since. His wife came from Burlington to Omaha early in March, and they at once took up housekeeping at the place above noted. On the day he arrived he saw the superintendent of Armour & Co. about employment, and has since sought employment from others in the live stock business, and also from the Standard Oil Co. at that place, but had not found a place to work up to April 17th, when he testified, but he expressed his confidence in being 'able to get employment here before very long,' that a live stock commission company there had told him that they would have an opening for him about the middle of July, and that he had been assured of employment later in the season. Mrs. Bragg testified that she had not been back to Wyoming since they left there in December, 1921, and that she did not expect to return there at the time they left, that they went to Burlington to spend Christmas with her family, that she expected to go from there to Omaha to join her husband and there make their home, that when they left Wyoming it was their intention, as discussed between her and her husband, that they would maintain their residence in Omaha after their visit to Burlington. She went from Burlington to Omaha on March 9th and stayed at the Paxton Hotel, where her husband was then staying, until March 12th, and they then went to 2123 Cass Street, where they had since resided. Mr. McCullough, who was engaged in the live stock commission business at Omaha, testified that he met Bragg in the Exchange Building at South Omaha...