DRESSER·V. ·EDISON ILLUMINATING ,CO.
DRESSER ,,; EDISON ILtmuNATlNG
(Circuit Court, D. EhoiLe Island. February 12, 18112.)
J'muSDICTION OJ!' FEDERAL COURTS-CITIZENSHIP-RESIDENCE.
Where the parents of a minor remove from the state of her birth when she is 10 years old. her citizenship follows theirs. although for nearly 10 years longer ahe remains in the original state, completing her education, and spends but partef each year at the new home of her· parents. . One who depends entirely upon her grandparents for support, and makes her pennanent home with them at the place of her fonner residence, continues to be a resident of that place, though in company with her grandmother she spends about half of each year in a differjlnt state, living in different rented houses, and has the bonafide intention of becoming a resident of the latter state. .
At Law. Action by Susan L. R. Dresser against the Edison TIlmniriating Company. Heard on motion to dismiss for want of jurisdiction. Granted·. Wnl. G. Roelker, for plaintiff. Saml. R. Honey and Arnold Green, for defendant. CoLT,Circuit Judge. The defendant moves to dismiss this suit for want 'of jurisdiction, upon the ground that the plaintiff, at the time of bringing the suit, was a citizen of the state of Rhode Island, and nota. citizen ()fthestate of New York, as alleged in her writ. !tappoors from the affidavits· that the plaintiff is the daughter of George W. Dresser, and that she was bom in the city of New York in 1864, where her parents then lived. Subsequently, Mr. Dresser moved to Newport, R. 1., and he became a resident of that, city as early as 1875. Thisa.ppears from the following facts: He began paying personal property taxes in Newport in that year; he registered in Newport as a voter in 1873; he was on the voting lists of that city from 1878 to 1881, and voted there in 1880; he died in Newport in 1883, and was buried there. mother, died in Newport a short time beMrs. Dresser, the fore her husband, and was buried there. The plaintiff remained at school in New York after her father changed his residence to Newport, and down to about the time of her father's death, in 1883, spending only a portion of each year in Newport. This circumstance, taken in connection with the fact of her birth jn New York, is urged to support the position that she still remained a resident of New York. When Mr; Dresser established his residence in Newport, the plaintiff was a minor. about 10 years of age. Her place of residence, therefore, would naturally follow that of her parents, and would be in the place where the family home was located. Although the plaintiff continued her education in New York, and passed only a part of each year in Newport, she became legally a resident of Newport when her parents became residents of that city, and made it their permanent domicile and place of family abode. I have no doubt, therefore. that Newport was the legal residence of the plaintiff on the death of her father in 1883, she being then 19 years of age. Upon the death of their parents, the Dresser childreti1, v.49F.no.4-17
, comprising the plaintiff, her three younger sisters, and a brother, went to live with their Daniel J...e Roy, at ,his ,residence No. 206 Bellevue avenue, Newport, and, with the exception of the brother, these children havecontinuedi to make this their home down to the present time, The grandfather, Daniel La Roy, died in 1885, and since then they have lived with, their grandmother, Mrs. Le Roy. The plaintiff derives her entire support from her grandmother. While the plaintiff's permanent horne has been at the Le'Roy house in Newport since her father's death, she has not in fact resided there continuously, for it appears that·sbewas absent portionl3 of each year prior to 1888, visiting relatives. or friends in ,New York, Boston, and other places, and that since 1888 Mrs; La Roy ,and herself have spent about half of each year in New York in several different rented houses. During the spring, however, the;faQlUy havealw;ays retQrned to their residence in Newport. I do not think from N,ew.port effected a change of residence on the part of the plaintiff, because they were only temporary; her per·, manent residence continuing to be Newport., '. . . . Daniel Le Roy, the plaintiff's gr\lndfather, was a re&ident of New York down to 1882, and it is claimed that he was still a resident of New York when he died at Newport, in 1885. Stress is laid by the plaintiff upon this circulllstance, in connection with; the testimony. ,of Mrs. Le Roy,· who says,tQat her husband never intended to cbangehis residence to Newport, and that ,she al ways considered. herself a resident of New York. Whether the plaintiff's grandfather,Daniel Le Roy, at the time of his death in 1885.was a resident of Newp.ort or of New York, it is not necessary for us to determine, but, as bearing upon this pQint, and upon the general.question of the residence of the Le Roy atld Dresser families at the present time, it is important to note ,certain. facts brought out in the affidavits : Mr. Le Roy gave up his residence on Twenty-Third street, New York, in 1883,owing to the encroachments of business,and moved with his family to. Newpork He died in Newport, and his will was probated there. One ,of his da.ughters, Mrs.·. Dresser, the plaintiff's mother, livt1d in Newport. at the time of her death, in 1883, and was buried there. Another daughter, the .widow of Edward King, has lived in Newport for many years. A son, Stuyvesant LeRoy, has fora longtime been a resident of Newport, and votes in tha.tcity.. His widow, Mrs. Le Roy, has lived in the same house. in Newport since the death of her husband in 1885, and it has been her only permanent residence, and the Dresser children, except the SOil, have lived :wHh her, and have made her house their.4Cilme. Residence does not depend upon intent alone, but such intent ;must be accompanied by acts..showing w.hat the fact really is·. ,A person :Inay actually reside in place, but intend to, reside in ll.l1other f but, !luch intentioQis not suffici,eptto create a change of residence. S6,too, 8,person mayhave been born and have resided in a certain ,place, and ma)1'haveremoved temporarily to another place, intending to return to the former place; but. if the latter place becomes in fact hisnxedabodl:l(thll'mere intention to return:will not keep the residence in.the place. ,
I do .not doubt the good faith of. the plaintiff in alleging. herself to·.be a resident of:tha1· · citizen ofNew York, nor of herintention to state, but upon the facts as presented, I feel bound to hold that she be<lame a resident of Newport, the; year 1875, and that she has continued to remain a resident of that city. Suppose the defendant in this case had been a citizen of New York, instead of Rhode Island, and the alleged wrong complained of had happened.. in New York, and the plaintiff had brought suit in the federal court there, would the defendant have been entitled to have the cause dismissed, upon the papers submitted in this case, on the ground that the plaintiff was in fact a Qiti.. zen ofNew York? . The motion to dismiss for want ofjurisdiction is granted.
McCLELLAN et dl.
PYEATT et aL
CCmmit Court of Appea/.l, Ef.ghth. OirouU. ll'ebrua171. 189'J.)
L WEn. OJ' EBBOR-RBTURN-Du-mKEGULARITIBB. ..... . .. Where on error to the circuit court. of appeals the citation!1J made returnab15 60 days after its date, (as allowed by rule 14, par. 5, 47 Fed. Rep. vii.,) and tbe writ of error on a day named.which islllSS than 60 days therefrom, it. will be pl'8'sumed the fixing of the latter day was an oversight, and' the writ will not be dismissed where the record is filed· thereafter, but. within 110 days, though rule 16, ld. vill., .-equires the record ,to be filed "by or before
of appeals under the proper,caption,the fact that he certifies on the writ l)f error that. he "therewith transmits to the supreme court of the United States" a d.ulycertified' transcript, etc., is an immaterial mistake.
Where the clerk of the lower court transmits the traDSCript to the circuit conn
Where there is nothing in the record to show that the persOn served witb tbeeltation was a person upon whOm a lawful service could be made, the return may amended to show that he was in fact attorney for defendant in error. bond Which is su1llclent in all other respects waa taken and approved before the writ of error was sued out ilJan immaterial irregularity, as the court willprelJUme that It was reapproved upon the issuance of the citation and the allowanoe of the writ,.
BAM_BoND-IRREGULARITY. The mere fact that a BU,YfJ'1'SedeaS
When the security of the supfJ'1'sedeas bond Is lJuflicient, as required by Rev. Bt. 11. S. 11000, It is immaterial that it is aigned by oni,. one of the plaintith iJl error.
In Error to the United States Court in the Indian Territory. Motion to dismiss the writ of error and vacate the euperaecleal. John H. RogerB, for the motion. . George E. Nelsrm and William M. CHav8'11B, opposed. Before OALDWELL, Circuit Judge, and S;HIBA.S and Tlu:nm, Di$triet Judges.
THAYER, District Judge. This case comes from the United States court in the Indian Territory. The record shows that final judgment was rendered against the plaintiffs in error on July 8,1891. On the 29th