y'DONALD v. SALEM CAPITAL FLOUR-MILLS CO.
McDoNAW and anotherv. SALEM CAPITAL FLOUR-MILLS Co. and others.
1. (Ozrcuit Oourt, D. Oregon. August 1. 1887.)
REMOVAL OF CAUSES-PLEA TO THE JURISDICTION.
A party against whom a case has been removed from a state to a national court may contest any allegation of fact on which such removal was had, by a plea in t4e nature of a plea to the jurisdiction of the latter court; and this, whether such allegation IS contained in the pleadings proper or the petition for removal.
SAME-RESIDENCE AND CITIZlI;NSHIP.
EQUITY PLEADING-ARGUMENTATIVE PLEA.
A plea to the jurisdiction that one of the parties to the Ollose is a citizen of a state other than that alleged in the petition for removal, need not be supported by an answer. ' , . .I (81/ llabu8 by the Oourt.)
SAME-ANSWER IN SUPPORT OF PLEA.
John M. Bower, for Kelly and McDonald. WiUiam B. Gilbert, for the bank and for Stuart.
DEADY, J. This suit was brought by the plaintiff, R. McDonald, in the state circuit court for the county of Marion, against the Salem Capital Flour-Mills Company, the First National Bank of Salem, the City of Salem Company, William Stuart, and James McDonald, trustee. On February 19, 1887, an amended complaint was filed, making Joseph F. Kelly·a party plaintiff. The object of the suit is to establish and enforce the alleged lien of two certain judgments in favor of the plaintiffs, respectively, as the assignees of the Oregon & Washington Mortgage Savings Bank, against the defendant, the City of Salem Company, namely: Ajudgment obtained by McDonald in the state circuit court for the county of Multnomah, on December 6, 1886, for $14,368.22, and one obtained by Kelly in the same court on April 3, 1886, for $12,771.50,-and to that end to set aside, as so far null and void, certain mortgages and conveyances of the property of said City of Salem Company, executed to certain of the defendants after the existence of the indebtedness on which said judgments were given, namely: A mortgage to William Stuart of August 2,1883, to secure the sum of$71,940; a conveyance on June 10, 1884, of all the property of said company to James McDonald, in trust for the Salem CapitalFlour-Mills Company, and a conveyance of the same by the v.31F.no.l0-37
mer to the latter on July 1, 1884; and a mortgage by the flour-mills company on November 17, 1886; to. the defendant, the First Na'tional Bank of Salem, to secure the sUm of $30,000. On February 21,1887, the defendant the bank filed a petition and bond for the removal· of the ctmse, and on the twenty-fourth of the same month an order was made to that effect in the state court. In this court the bank had leave, on April 29th, to file an amended petition for movalJ from which it appears that the petitioner is a corporation ized uhder national banking:act of the United its cipal place of business at Salem, Oregon; that Joseph F. Kelly is a citizen of Rhode Island, residing in London, England; thatR. McDonald is a the Salerir:Oapital Flour-Mills Company is a fictitious porationorga,nized under the la.wof Great Britain; that the City of Salem Company is a corporation formed under the law of Oregon; and William Stuart and James McDonald are British subjects. And from said tion and the"&,mplaint herein it also appears there is a controversy involved in the suit which is wholly between citizens of the United States, ___ and said Kellr.." .' '.' . On the plaintifl'llfiled a plea· to the petition for removal, purporting to be verified by McDonald, and alleging that he is a British subject,. resident in Oregon for more than six months prior to the mencen:i,erltof,this,suit,. and that Joseph F. Kelly is a citizen of Oregon, residing temporarIly in London, Erigland; and pray judgment therein that this cause be remanded to the state court from which it was removed. Tbe plea was set down for argument, and counsel beard as to its ciency on June 20th. .; . Wbenever a party against whoni,a cause has been removedfrom a state to a national court wishes to contest any allegation of fact on which such he maydoso.by a dilatory plea, in the nature of a plea to tbe jurisdiction. Lube, Eq.160; Hoyt v. Wright, 4 Fed. Rep. 168; Fi1eIr: Levy, 17 Fed. Rep... 609. The petition for removal is a part of the record; and whenever; as in this case, the facts on which the removal 1s made do not appear otherwise than by the petition, it must be considered, for the purposes of such plea, a part of the case stated in the bill or complaint. The right of the bank to remove this case to this CQurt, and the jurisdiction of the )atter to hear and determine the same, depend on the fact that there is a :separable controversy involved in it between citizens of different states. Act 1875, § 2; 18 St. 471. Such n·· controversy llndoubtedlyex;ists in the case between the bank and KeJIy, and also: ithe former and McDonald. But the latter, if a real person, is admitted to be an alien; and, unless Kelly is a citizen of a state ofthis Union Qtherthan Oregon, the case is not properly here, and must be· remanded. cAndany party to the case may set up any fact which shows the non-existence of this diverse citizenship between these parties, in a plea to the jurisdiction of the court, for the purpose of having the caserewanded. This is simply a negative plea, and does not require to be supported by an answer. The principal objection made to the plea is tbat it admits Kelly is'
M'DONALD V. SALEM CAPITAL FLOUR-MILLS CO.
not.a resident of Orllgon, thereby in effect adnlits that he is not, a citizen of Oregon, notwithstanding the direct averment to the contrary. Citizenship being a mixed ,question of law and fact,. there is no doubt that a plea may coptain details of fact so inconsistent with the general averment of citizenship as to neutralize it. Bllt while residence, as a fact. is prima facie evidence of citizenship, it is not conclusive of the A person may be a citizen of one state or country and resiq,e for the time being in another. Sharon v. Hill, 26 Fed. Rep. 342. , Counsel for the petitioner cites and relies on P!.Yf!pffnhauser v. Inaip,n Rubber Co. , 14 Fed. Rep. 707. In this case a motion to remllnd was heard by the, court on affidavits, touching the question of whether oneoi the defendants was a citizen of New York, and the court held, from the fact of her continued residence abroad, under the circumstances, that she was not. And in the course of his opinion the learned judge said: "For the purposes of the jurisdiction of the courts of the United States, domiCile is the test of citizenship."But domicile implies more than , residence. Primarily, a person's domicile is his legal home, or the place I where the law will presume, under the circumstances, he intends to permanently reside, although he may be absent from it at the time. Rap. & L. Law Dict. "Domicile." Kelly may have a domicile in or be a citizen of Oregon, and at the same time have a residence oimare or less duration in England. In this respect the plea is sufficient. When the fact comes to be inquired into, the residence abroad and elsewhere may be sufficient, under the circumstances,as evidence to show that Kelly never had a domicile in Oregon, or that he has lost it. , But this plea is clearly open to the objection that it is argumentative, --':'not positive and direct, as it should be. Story, Eq. PI. § 662; Lewis, Eq. Dr. 222. The petition alleges that Kelly is a citizen of Rhode Island, "residing,"-not temporarily,-"in England." In answer to this, the plea alleges that "Kelly is a citizen of Oregon. temporarily residing in England." He cannot be a citizen of both states at the same time, and therefore argumentatively the plea takes issue with the petition on this point. But, in addition to stating the contradictory fact, the plea must directly negative or traverse all the inconsistent facts and circumstances, and directly avel' that ,Kelly is not a citizen of Rhode Island, and is nota resident of England. The plea is insufficient and is overruled.
FIRST NAT. BANK OF SALEM'll. SALEM CAPITAL FLOUR-MILLS CO. and others.
(Circuit Court, :D·. Oregon.
August I, 1887.)
DEADY, J. This suit was brought il!- this court on April 4, 1887, and involves the same questions as the foregoing one, the parties being in some measure reversed.- The bill alleges, other things, that Kelly is a citizen of Rhode Island, resident in England, and It als() agpears that there is a controversy in the case betw.een the plaintiff, a citizen of regon, and said Kelly, from which it follows that the court has jurisdiction. Act 1875, § 1; 18 St. 470. The plea to the jul'iBd).ction, purporting to be verified by McDonald only, alleges that Kelly is a citizen Oregon, temporarily in London, England, without specially traversing the allegation that he is a citIzen of Rhode Island, and resident in England. For the reasons given above·the plea is held insufficient and overruled.
FmsT NAT. BANK OF SALEM 'IJ. SALEM CAPITAL FI.OUR-MILlB CO.
(Oirc'uit Oourt, :D. Oregon.
An original bill and a cross-bill thereto constitute but one cause, and, when a circuit court has jurisdiction of the former by reason of the citizenship of the parties thereto, it has jurisdiction of the latter without reference to such citizenship. 2. MORTGAGE-FORECLOSURE-CRoss-BILL OF PRIOR MORTGAGEE. In a suit to foreclose a mortgage, a prior mortgagee isa proper party defendant; and when so made a party, he has a right to :file and maintain a cross-bill for the purpose of having the lien of his mortgage enforced and procuring a :determination of any question concerning its priority or validity that can arise and be litigated between himself and any or all of the parties to the original bill. . (Syllaou8 oy the Oourt.) ,
Suit in Equity to Enforce the Lien of a Mortgage. William H. Gilbert, for plaintiff. JohnM. Bower, for defendants Kelly and McDonald. DEADY, J. This suit is brought by the First National Bank of Salem, against the Salem Capital Flou1,'-Mills Company, William Stuart, R. McDonald, and Joseph F. Kelly, to enforce the lien of a mortgage given to the plaintiff by said flour-mills company, on certain real property in and about Salem, Marion county, Oregon, on November 17,1886, to secure payment of the note of said flour-mills company, of the same date, for the sum of $30,000, and payable to the order of the plaintiff one day after date, with interest at 10 per centum per annum, on which note there is due the plaintiff, since March 11, 1887, the sum of $28,254.9l. It is alleged in the bill of complaint, that the plaintiff is a citizen of Oregon, and the defendants the flour-mills company, William Stuart, and R. McDonald are British subjects, and Joseph F. Kelly is a citi-