Walton Hardin v. James L. Mcavoy and Knox Corporation, 216 F.2d 399 (5th Cir. 1955)

What and all that is for decision here is whether the district court erred in dismissing plaintiff's suit for want of jurisdiction on the ground that both plaintiff and defendants were citizens of Georgia.

The question comes to us in this way. On July 28, 1953, plaintiff below, appellant here, alleging himself to be a citizen of Florida, brought this suit for conversion of timber of the value of $16,400.

On August 28th the defendants filed their answer admitting in it that the amount in controversy was in excess of the required jurisdictional amount, but denying plaintiff's claims of conversion and setting up other defenses.

On August 31st, alleging that plaintiff was a resident of Washington County, Georgia, "and as such there is no diversity of citizenship", defendants moved to dismiss the suit for want of jurisdiction. The motion coming on for hearing on September 18th, and both plaintiff and defendants appearing and offering evidence, the district judge, stating "Well, it gets down to a question of law", took the motion under advisement. Thereafter, on January 4, 1954, without making findings of fact or otherwise stating his reasons, he entered an order dismissing the suit, and plaintiff has appealed.

Neither below nor here was attention called to the insufficiency of the motion on its face in attacking plaintiff's residence rather than his citizenship, but the parties and the district judge have treated the motion as properly presenting the diversity issue, and we will so treat it.

Insisting that upon the undisputed testimony which was accepted by the judge as true, he was and is as matter of law a citizen not of Georgia but of Florida, and that the order was improvidently entered, appellant is here urging upon us that it must be reversed.

We agree with him that this is so.

This is not to say that there are not in the record shreds and bits of evidence¹  which, standing alone, might smack of equivocation and tend a little to becloud his claim. It is to say, though, that such clouds as there are are no bigger than a man's hand, trifles light as air, and that, in the full light of plaintiff's undisputed testimony²  and the settled law,³  the conclusion is inescapable that when the suit was brought and this record made, plaintiff was domiciled in, and was a citizen of, Florida, and not of Georgia.

Since the district judge gave no reason for deciding the case against plaintiff, we cannot say whether he was misled, by the statement that an essential requisite to the acquisition of a domicile is an abiding intention to make the place of residence home, into thinking that the possibility of eventually living elsewhere, or even of returning whence one came, would prevent the acquisition. It is quite possible, though, in view of the lack of precision⁴  sometimes attending the statement of the controlling principle, that the district judge may have fallen into the error in this case into which the district judge fell in Gallagher v. Philadelphia Transp. Company, note 3, supra. This error was attaching an incorrect significance to the word "permanent" sometimes used in discussing the animus manendi requisite in acquiring a new domicile, with the result of incorrectly concluding, from plaintiff's testimony, that he anticipated moving to Washington, Georgia to go back and farm as soon as he had made enough money in Florida, that, as matter of law, plaintiff's residence in Florida was not joined with the requisite animus manendi.

In Judge Hastie's excellent opinion in the Gallagher case [185 F.2d 546], the error and effect of this kind of reasoning is thus clearly and incisively pointed out:

"* * * But the substitution by the court of emphasis on the word `permanent' in its Findings indicates to us that the court was using `abiding' to exact the same standard, that is, that the plaintiff have had an affirmative intention permanently to attach herself to Oregon or California.

"While we concede that there is a good deal of rather ambiguous talk in the cases, some of which might arguably be taken to support this position, we think that it is incorrect. The emphasis of the court on the permanence of the anticipated attachment to a state, in our opinion, required too much of the plaintiff.

"There is substantial concurrence in the correctness of the negatively stated proposition that it is the absence of an intention to go elsewhere which is controlling. Gilbert v. David, 1915, 235 U.S. 561, 35 S. Ct. 164, 59 L. Ed. 360; see Williamson v. Osenton, 1914, 232 U.S. 619, 624, 34 S. Ct. 442, 58 L. Ed. 758; Williams v. North Carolina, 1942, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279. It is enough to intend to make the new state one's home. Restatement, Conflict of Laws (1934) §§ 19, 20; Chicago & N. W. Ry. Co. v. Ohle, 1885, 117 U.S. 123, 6 S. Ct. 632, 29 L. Ed. 837. It is not important if there is within contemplation a vague possibility of eventually going elsewhere, or even of returning whence one came. Goodrich, Handbook of the Conflict of Laws (3rd ed. 1949) § 28; see Gilbert v. David, supra, 235 U.S. at page 569, 35 S. Ct. at page 166. If the new state is to be one's home for an indefinite period of time, he has acquired a new domicile. Mid-Continent Pipe Line Co. v. Whiteley, 10 Cir., 1940, 116 F.2d 871. Finally, it is the intention at the time of arrival which is important. The fact that the plaintiff may later have acquired doubts about remaining in her new home or may have been called upon to leave it is not relevant, so long as the subsequent doubt or the circumstance of the leaving does not indicate that the intention to make the place the plaintiff's home never existed. Shoaf v. Fitzpatrick, 6 Cir., 1939, 104 F.2d 290, certiorari denied 1939, 308 U.S. 620, 60 S. Ct. 295, 84 L. Ed. 518; Stockyards National Bank v. Bragg, 8 Cir., 1928, 293 F. 879."

Finally, it must be kept in mind that a person may not have two domiciles, two citizenships, at the same time, and that while intention and presence when joined are significant and important elements, a mere detached, indefinite and ambulatory future intention to possibly or probably effect a change of domicile, not attached to and fixed at a particular residence at a particular place and time is of no real significance. Thus it is settled law that when present intention and place of residence conjoin, a mere indefinite or future intention to choose some other domicile at some indefinite time in the future, cannot divest a present domicile to confer another.

While the cases dealing with questions of citizenship and domicile are legion, and because they are, discrepant statements have sometimes crept into some of the opinions, those that speak with authority speak with one voice on the point at issue here. If, therefore, the shoe were on the other foot, and plaintiff, sued in Florida, were seeking to defeat jurisdiction with the claim that, because he intended some day to return to Georgia, he was a citizen, not of Florida, but of Georgia, he would certainly, in the face of the undisputed testimony in this case, be unable to do so.

Because we have decided that the requisite diversity exists, and the court has jurisdiction of the cause, it will be unnecessary for us to discuss the contention of the appellant that, under the Seventh Amendment, he was entitled to have the question tried to a jury or to say more of it than that the contention is without legal basis and that while the court may, if it so desires, submit such questions to a jury, the normal and usual course is for them to be determined by the judge either on his own motion or on that of the parties.⁵ 

The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.