Delgado v. Latimer

HAMILTON, Judge, delivered tbe following opinion: By agreement of parties, tbe question of jurisdiction as dependent upon domicil is set down separately, and will now be, determined. Tbe principles of domicil have been several times settled in tliis court, and need not be discussed. It depends upon event of residence and tbe, intention to remain. It lias been settled ever since the time of tbe Boman Jurisconsults that actions speak louder than declarations in such matters. Marks v. Marks, 75 Fed. 327; Sharon v. Hill, 11 Sawy. 290, 26 Fed. 337 (C. C.) In tbe case at bar, tbe plaintiff left bis old borne in Porto Pico to seek employment in New York, but it is not shown that be secured any permanent employment there. His wife, child, and tbe property now in dispute, were and are in Porto Rico. He was registered in New York under tbe New York Act of March 29, 1917, chapter 103, authorizing “a census and inventory of the resources of the state, available for use in tbe event of war.” Ilis registration card was put in evidence. The wording of this act is not decisive, and in all events this legislation seems designed not so much to ascertain who were residents and what was their property, as to ascertain what persons and properties were within tbe state limits. More important is tbe letter which he wrote to his wife seeking reconciliation upon plaintiff’s return to Porto Rico. He [533] now states that be came back, intending to remain in the event' of reconciliation or during dependency of the present suit, with, the ultimate intention of returning to New York. The letter in question, however, shows a very creditable spirit of love for his home and family, and gives no intimation of any intention to do other than remain in Porto Pico. It is not conclusive, but tends to show the intention to return to Porto Pico, if not the feeling that he had never left except temporarily. The burden is on the plaintiff to prove his domicil in New York, and this is not satisfactorily shown to the mind of the court. Performing jury duty in Porto Pico is not material, as that duty extends to American residents, whether domiciled or'not. Yoting is not in this case, but would not be material despite Shelton v. Tiffin, 6 How. 185, 12 L. ed. 397, which was a dictum, Gaddie v. Mann, 147 Fed. 955. In Barry v. Edmunds, 116 U. S. 550, 29 L. ed. 729, 6 Sup. Ct. Rep. 501, it is held that the conviction of the judge from the events on the record must amount to a legal certainty. Wetmore v. Rymer, 169 U. S. 115, 42 L. ed. 682, 18 Sup. Ct. Rep. 293. The conviction of the court in the case at bar amounts to such a certainty that the plaintiff either never acquired a domicil in New York, or, if he did, that he moved back to Porto Pico with the intention which gave him again his domicil here. Winn v. Gilmer (C. C.) 27 Fed. 817; Rucker v. Bolles, 25 C. C. A. 600, 49 U. S. App. 358, 80 Fed. 504; Alabama G. S. R. Co. v. Carroll, 28 C. C. A. 207, 52 U. S. App. 442, 84 Fed. 780; Corel v. Chicago, R. I. & P. R. Co. (C. C.) 123 Fed. 452; Harding v. Standard Oil Co. 182 Fed. 426; Mitchell v. United States, 21 Wall. 352, 22 L. ed. 587; Moling v. Correa, 10 [534] Porto Rico Fed. Rep. 287; Scoville v. Soler, 10 Porto Rico Fed. Rep. 308. Tbe application to dismiss miist, therefore, be granted. It is so ordered: