N. M. Hubbard and Chas. A. Clark, for plaintiff in error.
S. S. Burdett, for defendant in error.
WAITE, C. J.
This is a writ of error brought under section 5 of the act of March 3, 1875, (18 St. 470, c. 137,) to reverse an order of the circuit court remanding a case which had been removed from a state court. The suit was brought in a state court of Iowa on the nineteenth of November, 1883, by Ohle, the defendant in error, described in the petition as a citizen of Illinois, against the Chicago & Northwestern Railway Company, an Illinois corporation, to recover damages for an injury sustained by him [117 U.S. 123, 124] while a laborer on a construction train of the railway company in Iowa. On the twenty-first of March, 1884, the company petitioned for the removal of the suit to the circuit court of the United States on the ground that Ohle was a citizen of Iowa, and the railway company a citizen of Illinois. The case was docketed in the circuit court of the United States May 13, 1884, and the next day, May 14, Ohle moved to remand, because both he and the company were citizens of the same state. On the twenty-second of May he was given leave to file a plea in abatement or to the jurisdiction, which he did August 29, 1884, alleging that both he and the company were citizens of Illinois. Upon this plea issue was joined, and a trial had with a jury, October 30, 1884. On the trial it appeared that at the time of the injury Ohle was a minor, having his home with his parents, who were citizens of Iowa, residing at Burlington, in that state. While still a minor he brought suit by his next friend in a state court of Iowa against the company to recover damages for his injury. This suit was removed by the company to the circuit court of the United States. Before any trial was had, and in April, 1883, Ohle went to Janesville, Wisconsin, to attend school for the purpose of learning telegraphy. In October, 1883, he went from the school to Des Moines, Iowa, to attend a trial of his suit, and the trial resulted in a disagreement of the jury. He then went to visit his parents in Burlington, and stayed about a week. After the disagreement of the jury he discontinued his suit, and about the sixth of November went to Chicago, Illinois, where he remained until about the twenty-seventh of November. While he was in Chicago at this time the present suit was begun, and the simple question presented on the trial of the issue made by the reply to the plea to the jurisdiction was whether he had actually and in good faith given up his citizenship in Iowa and acquired a new citizenship in Illinois before this suit was brought. He was the only witness sworn. He testified in substance that when he went to Chicago, he intended to make that his home. It is true in a subsequent part of his testimony he said this was done so as to prevent the railroad company from removing any other suit he might bring in Iowa to the courts of the United States; but according to [117 U.S. 123, 125] his testimony he then, being of full age, did leave Iowa with the bona fide intention of abandoning his citizenship in that state and gaining another in Illinois. He has never gone back to Iowa to reside. He was of age and had the right to abandon one residence and take up another. He took a room in Chicago and remained there three weeks. Before this was done the manager of the school in Janesville where he was being taught had engaged employment for him in Chicago, which he was to enter upon as soon as he had finished his education. After his suit was brought he went from Chicago to the school in Janesville with the in tention, as he says, of returning when he had got through with his education. He did go back on the thirteenth of March, 1884, took up the work for which he had been been engaged, and remained there all the time doing that work until he was sworn at the trial of the issue on the plea to the jurisdiction in this case. He was examined fully by counsel for both parties. Some things which he testified to had a tendency to prove that he did not, in good faith, go to Chicago with the intention at that time of abandoning his citizenship in Iowa and acquiring another in Illinois.
In the course of the trial, also, Ohle offered in evidence an affidavit, filed in the case on behalf of the company, for the purpose of requiring him to give security for costs because he was a non-resident of Iowa. That affidavit was as follows: 'I, H. G. Burt, being first duly sworn, on oath say: That I am the superintendent of the Iowa Division of the Chicago & Northwestern Railway Company, which includes the main line from Clinton, Iowa, to Council Bluffs, Iowa, together with several branches; that I am acquainted with the facts in regard to the injury of Gus. B. Ohle for which the above suit is brought, and that the defendant has a good defense to the entire claim made by the plaintiff in said cause, and that the plaintiff is a non-resident of the state of Iowa, as he claims in his petition in this case, and as I believe.' To the introduction of this affidavit the railway company objected. This objection was overruled, and an exception taken. [117 U.S. 123, 126] When the evidence was closed the railway company asked the court to charge the jury as follows:
These requests were refused, but the court did charge, among other things, in these words:
The company in due time excepted to the last paragraph in the charge beginning with the words 'by way of illustration' and continuing until the end, and to the refusals to charge as requested.
The jury found that Ohle was a citizen of Illinois when the suit was begun, and the court thereupon remanded the cause. This writ of error was brought to reverse an order to that effect, and the errors assigned are: ( 1) That the court erred in refusing to charge as requested; (2) that it erred in that part of the charge as given which was excepted to; and (3) that it erred in admitting the affidavit objected to in evidence.
The charge as given covered the requests that were made. It stated clearly to the jury what was necessary in order to make a change of citizenship, and we are unable to find anything wrong in the rules which were laid down. The jury were told as distinctly as it could be expressed in words that Ohle did not gain a citizenship in Illinois when he went there on the sixth of November, unless he did in good faith leave Iowa, and giving up his residence there go to Illinois, and actually and in good faith take up his permanent residence in that state at that time. Clearly this covers the whole case, and as the jury found that he had gained his citizenship in Illinois when the suit was begun, the error, if any, was with the jury in its verdict on the evidence, and not with the court in its charge on the law. There is nothing in the requests to charge that is not in the charge as given, except those parts of the requests which imply a state of facts different from what the jury must have found. There was certainly some evidence that when Ohle went to Chicago on the sixth of November he intended to take [117 U.S. 123, 129] up his home there at that time, and actually did so. Such being the case, it was not error to refuse to charge the jury that this was not the fact. It is not for us to decide that the jury brought in a wrong verdict under a correct charge if the record shows, as it does, that there was some evidence to support the finding which was made.
We see no error in the admission of the affidavit in evidence. The affidavit having been filed in the cause by the company as a ground for obtaining an order of the court in its favor, was competent evidence against it on the trial of another issue; and the fact that belief affected only its weight, and not its competency. Pope v. Allis, 115 U.S. 363 ; S. C. ante, 69.
After the verdict the court had nothing to do but to remand the suit; its order to that effect is consequently affirmed.