Sullivan v. Lloyd

• Citation: 213 F. 275
• Decision Date: 25 April 1914
• Docket Number: 504.
• Parties: SULLIVAN v. LLOYD et al.
• Court: U.S. District Court — District of Massachusetts

213 F. 275

SULLIVAN v. LLOYD et al.

No. 504.

United States District Court, D. Massachusetts.

April 25, 1914

Hudson & Nichols, of Boston, Mass., for plaintiff.

Brandeis Dunbar & Nutter, of Boston, Mass., for defendants.

DODGE Circuit Judge.

1. The plaintiff describes the defendant in her writ as a citizen of Massachusetts. In his petition to remove he alleges that he is a citizen of Illinois. Upon this issue the burden is upon him. By consent of parties the evidence bearing upon it has been heard, and it is to be decided, by the court.

There is no dispute that the defendant was a citizen and resident of Massachusetts from 1908 until June 19, 1913; his residence being in Malden until April 22, 1913, after that in Boston. He left Boston on June 19, 1913, left Massachusetts on June 20th, and went to Winnetka, Ill., arriving there June 21st. He was born in Winnetka in 1886 and had lived there from the time of his birth up to 1899. He stayed in Winnetka in the house where he was born, then occupied as a residence by his brother William, until the end of June, when he started with his brother for Seattle. He ultimately continued this journey around the world, arriving again in the United States in March, 1914. From New York he went back to Winnetka, where he has since lived. He never returned to Boston after leaving it on June 19th, and has been in Massachusetts only on one day since that time, viz., March 23, 1914, for the purpose of testifying in a suit brought against him by a different plaintiff. He returned to Winnetka as soon as this testimony had been given.

The date of the plaintiff's writ is January 14, 1914, and the question is as to the defendant's citizenship on that day. It is true that after he left Boston, and before the date of the writ, he had actually lived in Illinois only from June 21st to the end of that month, and only as a visitor at his brother's house, without residence or place of business in Illinois which he could call his own. But particularly in view of the fact that his domicile of origin was in Illinois, I see no reason to doubt that if when he went there in June he actually intended in good faith to abandon his Massachusetts residence and live in Illinois instead, either permanently or for an indefinite time, and if this was the whole of his intent, it would be enough to effect the proposed change of citizenship and residence immediately. Cooper v. Galbraith, 3 Wash.C.C. 546 Fed. Cas. No. 3,193; Marks v. Marks (C.C.) 75 F. 321.

Nor would this be any the less true if it was his purpose at the time to enable himself to invoke federal jurisdiction, by means of a change of citizenship effected as above, in case the plaintiff should sue him. Such a purpose would make no difference unless what he intended was only an ostensible change, to be made without real intent to stay in Illinois longer than might be desirable for the purposes of the apprehended litigation, but with the view of coming back to Massachusetts when those purposes would no longer be served by residence elsewhere. Morris v. Gilmer, 129 U.S. 315, 328, 329, 9 Sup.Ct. 289, 32 L.Ed. 690.

There is every reason to believe that the defendant's departure from Massachusetts was induced by apprehension of a suit to be brought against him by the plaintiff, and for the cause of action she has declared on. He admits having promised to marry her on April 28, 1913, and having told her on June 16, 1913, that he would not do so, after preparations for the wedding had been made and one date fixed for it had gone by. It may well be supposed that he left to avoid service of process, and not improbably also in order to bring about a diversity of citizenship as between her and himself. Has he made it clear that his intent to change his citizenship covered no ulterior purpose of changing it back again if circumstances should permit?

Independently of this litigation there is not much reason to believe that Massachusetts would be more desirable to him as a residence than Illinois. He is unmarried, without a family, and had been occupying hired apartments. He had been receiving the income from a considerable estate held in trust for him by two Massachusetts residents, summoned as trustees in this case, but the trust property is situated chiefly in Chicago, and the trust expired by its terms on January 13, 1913, the day preceding the date of this writ. In anticipation of its expiration, his interest in the trust property, with other property belonging to him, was made over by him to new trustees upon another trust for his benefit, at or immediately after his departure from Boston in June, 1913, and it is on their behalf that an adverse claim is made in these proceedings. He had been carrying on a printing business in Everett, Mass.; but this plant was conveyed by him to the new trustees and was sold out in December, 1913. He has no other business interests in Massachusetts, so far as appears. His parents are not living, and of his three brothers, who are all his nearest relatives, two live in Massachusetts and one in Illinois.

He has testified in a deposition taken April 4, 1914, in Illinois under a commission from this court, that when h...