Under the act of March 3, 1875, determining the jurisdiction of Circuit Courts of the United States (18 Stat. 470, 472) the objection to the jurisdiction upon a denial of the averment of citizenship is not confined to a plea in abatement or a demurrer, but may be taken in the answer, and the time at which it may be raised is not restricted. Although the averment as to citizenship may be sufficient, yet, if it appear that that averment is untrue, it is the duty of the Circuit Court to dismiss the suit; and this court, on appeal or writ of error, must see to it that the jurisdiction of the Circuit Court has in no respect been imposed upon. Morris v. Gilmer, 129 U.S. 315, 325, Nashua Railroad v. Lowell Railroad, 136 U.S. 356, 374; Cameron v. Hodges, 127 U.S. 322, 325.
As remarked in Bernards Township v. Stebbins, 109 U.S. 341, 353, it has been the constant effort of Congress and of this court to prevent the discrimination in respect to suits between citizens of the same State and suits between citizens 702*702 of different States, established by the Constitution and laws of the United States, from being evaded by bringing into the federal courts controversies between citizens of the same State. Shreveport v. Cole, 129 U.S. 36, 44.
Although the Fourteenth Amendment declares all citizens of the United States to be citizens "of the State where they reside," yet as the jurisdiction of the Circuit Court is limited in the sense that it has none except that conferred by the Constitution and laws of the United States, and the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears, it is essential that in cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctively and positively averred in the pleadings, or should appear affirmatively with equal distinctness in other parts of the record. It is not sufficient that jurisdiction may be inferred argumentatively from the averments. Robertson v. Cease, 97 U.S. 646, 649; Brownv. Keene, 8 Pet. 112, 115. It was therefore held in Robertson v. Cease, supra; Continental Insurance Co. v. Rhoads, 119 U.S. 237; Menard v. Goggan, 121 U.S.253, and other cases, that the averment that the parties to a cause were "residents" in different States, respectively, was not enough. And in Brown v. Keene, supra, which was an action in the United States Circuit Court for the Eastern District of Louisiana, where the plaintiff was a citizen of the State of Maryland, that the averment that the defendant was a citizen or resident, "holding his fixed and permanent domicil in the parish of St. Charles," there being no allegation that he was a citizen of the United States, was insufficient.
Since the act of 1875, if it appears from the pleadings and proofs taken together that the defendants are citizens of the United States and reside, in the sense of having their permanent domicil, in the State of which the complainants are citizens, (or that each of the indispensable adverse parties is not competent to sue or liable to be sued, therein,) the Circuit Court cannot maintain cognizance of the suit. And the inquiry is determined by the condition of the parties at the 703*703 commencement of the suit. Mullen v. Torrance, 9 Wheat. 537; Conolly v. Taylor, 2 Pet. 556; Crehore v. Ohio & Mississippi Railway, 131 U.S. 240; Jackson v. Allen, 132 U.S. 27.
[. . .]
We are satisfied the pleadings and proofs in the record, taken together, negative the averment of the bill as to the citizenship of Sarah J. Davis, and show that she and her husband were not citizens of Florida when the suit was commenced, and that it is fairly to be presumed that they were citizens of the State of New York.
The place where a person lives is taken to be his domicil until facts adduced establish the contrary, and a domicil when acquired is presumed to continue until it is shown to have been changed. Mitchell v. United States, 21 Wall. 350, 352; Desmarev. United States, 93 U.S. 605, 609; Shelton v. Tiffin, 6 How. 163; Ennis v. Smith, 14 How. 400. And although the wife may be residing in another place, the domicil of the husband is her domicil. Story Confl. Laws, § 46; Wharton Confl. Laws, § 43; and cases cited. Even where a wife is living apart from her husband, without sufficient cause, his domicil is in law her domicil. Cheely v. Clayton, 110 U.S. 701, 705.
The rule is, said Chief Justice Shaw in Harteau v. Harteau, 14 Pick. 181, 185,"founded upon the theoretic identity of person, and of interest, between husband and wife, as established by law, and the presumption that, from the nature of that relation, the home of the one is that of the other, and intended to promote, strengthen and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the law," he continued, "will recognize a wife as having a separate existence, and separate interests and separate 707*707 rights, in those cases where the express object of all proceedings is to show, that the relation itself ought to be dissolved, or so modified as to establish separate interests."
[Anderson v. Watt, 138 U.S. 694 (1891)]
Black's Law Dictionary,
Sixth Edition, p. 1309:
RESIDE. Live, dwell, abide, sojourn, stay, remain, lodge. Western-Knapp Engine.
[Black's Law Dictionary,
Fourth Edition, p. 1473]
Western-Knapp Engineering Co. v. Gilbank, 129 F.2d 135 (9th Cir., 1942)
There are no cases in California deciding whether a foreign corporation can "reside" in a county within the meaning of the recordation sections of the Code. There are cases, however, on the question whether a foreign corporation doing business in California can acquire a county residence within the state for the purpose of venue. The early cases held that such residence could not be acquired.1 These cases were explained in Bohn v. Better Biscuits, Inc., 26 Cal.App.2d 61, 78 P.2d 1177,2 wherein it was finally established that a foreign corporation doing business in California, having designated its principal office pursuant to Section 405 of the California Civil Code provision (passed in 1929), could acquire a county residence in the state for the purpose of venue. The court in that case construed the venue provision of Section 395 of the Code of Civil Procedure which reads as follows: "In all other cases, * * * the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action. * * * If none of the defendants resides in the State, * * * the action may be tried in any county which the plaintiff may designate in his complaint."
In relation to this section, the court held: "The plaintiff stresses the word `reside.' It then contends that as the defendant is a foreign corporation having its principal place of business at Grand Rapids, Mich., that place is its residence and it may not be heard to claim that it resides at any other place. If by the use of the word `reside' one means `domicil' that contention would be sound. * * * It is not claimed that there is anything in the context showing the word `reside' was intended to mean `domicil.' By approved usage of the language `reside' means: `Live, dwell, abide, sojourn, stay, remain, lodge.' * * * By a long line of decisions it has been held that a domestic corporation resides at the place where its principal place of business is located. Walker v. Wells Fargo Bank, etc., Co., 8 Cal.2d 447, 65 P.2d 1299. The designation of the principal place of business of a domestic corporation is contained in its articles. Civ.Code, § 290 * * *. The designation of the principal place of business of a foreign corporation in this state is contained in the statement which it is required to file in the office of the secretary of state before it may legally transact business in this state. Civ.Code, § 405 * * *. Prior to the enactment of sections 405-406a * * * a foreign corporation had no locus in this state. No statute required it to designate, by a written statement duly filed in the office of the secretary of state, the location of its principal place of business in the state. After the enactment of said sections, the principal place of business of foreign corporations as well as domestic corporations was fixed by law. When the reason is the same, the rule should be the same. Civ.Code, § 3511. It follows * * * by reason of the enactment of section 405 et seq. of the Civil Code * * * said section 395 of the Code of Civil Procedure * * * applies to persons both natural and artificial and whether the corporation is a domestic or a foreign corporation." Bohn v. Better Biscuits, Inc., 26 Cal.App.2d 61, 64, 65, 78 P.2d 1177, 1179, 80 P.2d 484.
[Western-Knapp Engineering Co. v. Gilbank, 129 F.2d 135 (9th Cir., 1942)]
|