GILBERT V. DAVID, 235 U. S. 561 (1915)

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U.S. Supreme Court

Gilbert v. David, 235 U.S. 561 (1915)

Gilbert v. David

No. 97

Argued December 4, 1914

Decided January 5, 1915

235 U.S. 561


As § 37, Judicial Code, does not prescribe any particular mode by which the question of jurisdiction shall be raised, the method of raising that question may be left to the sound discretion of the trial judge, and, if the state practice admits, the issue may be raised by general denial in the answer.

While the trial court may submit the question of a party's residence to the jury, it is not bound to do so, and in this case the court properly exercised its privilege to dispose of that issue on the testimony.

In this case, the defendant was not chargeable with laches because he did not force to trial the issue of plaintiff's citizenship.

The fact that delay in determining the issue of citizenship results in the statute of limitations applying does not confer jurisdiction on the federal court if diverse citizenship does not exist.

Where the record in a case dismissed by the district court for want of jurisdiction on account of absence of diverse citizenship brings up the testimony, this Court must consider it and determine whether the trial court rightly decided that plaintiff was a citizen of the same state as defendant.

If plaintiff at the commencement of the action, be domiciled in a different chanrobles.com-red

Page 235 U. S. 562

state from that of defendant, he is a citizen of that state within the meaning of the Judicial Code.

Change of domicile arises where there is a change of abode and the absence of any present intention to not reside permanently or indefinitely in the new abode, and this notwithstanding a floating intention of returning to the former place of domicile after completion of the object for which the change was made. In this case, held that the acts of the plaintiff in regard to his change of residence indicated a change of domicile to the state in which defendant resided prior to commencement of the action, and diverse citizenship did not then exist.

The facts, which involve the jurisdiction of this Court under § 238, Judicial Code, and the construction of § 37, Judicial Code, and the jurisdiction and duty of the district court thereunder, are stated in the opinion. chanrobles.com-red

Page 235 U. S. 565


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