Heath v. Austin

BLATCHFOBD, District Judge. The motion of the plaintiff to remand this cause to the state court must be denied. (1.) On the question as to whether, at the time this suit was commenced in the state court the defendant was a resident of Connecticut in such sense as to make him a citizen of that state, the affirmative is with the defendant as essential to the right to remove the cause, and to the jurisdiction of this court. On the evidence presented, the defendant has successfully maintained such affirmative. It is undisputed that he was a permanent resident and citizen of Connecticut down to a period shortly prior to the commencement of this suit. The presumption is, in such a case, that such permanent residence and citizenship' continues, until it is shown to be changed. There is no satisfactory evidence to show a permanent change of residence by the defendant, animo man-endi. (2.) The cause was regularly removed into this court, on the defendant’s oath as to the jurisdictional fact of residence and citizenship in Connecticut. At most, the plaintiff raises a doubt only, on that question. In such a case, the jurisdiction is to be maintained, as the act of congress makes such oath prima facie evidence of the jurisdictional fact. (3.) Being regular in his proceedings for removal, the defendant, on this motion, fairly disputes the claim that he was not, when the suit was commenced, a resident and citizen of Connecticut In such case it is not a proper practice to remand the cause on motion. Dennistoun v. Draper [Case No. 3,804]; Galvin v. Boutwell [Id. 5,207].