Davis v. Knox County

Eighth Circuit

Davis v. Knox County

31 F.2d 757, 1929 U.S. App. LEXIS 3556

CourtCourt of Appeals for the Eighth Circuit

DecidedMarch 20, 1929

DocketNo. 8125

StatusPublished

This text of 31 F.2d 757 (Davis v. Knox County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Knox County, 31 F.2d 757, 1929 U.S. App. LEXIS 3556 (8th Cir. 1929).

Pincite

Opinion

STONE, Circuit Judge.

This is an action for personal injuries brought in the United States District Court by the plaintiff in error. A plea of abatement challenging the jurisdiction on the ground of the lack of diversity of citizenship was filed. It does not seem to have been formally acted upon. Thereafter an answer was filed which renewed the subject-matter of the plea in abatement. Thereafter the case came on for trial, a jury was orally waived, and the cause tried to the court. Testimony was adduced and the cause submitted on the objections to the jurisdiction. The court sustained such objections and dismissed the cause for lack of jurisdiction, without prejudice. From that judgment, this writ of error is sued.

The only question presented here is as to the jurisdictional matter. This depends upon the fact of whether plaintiff was a citizen of Nebraska at the time the suit was brought. As a jury was waived without the written stipulation required by the statute, and as evidence was introduced and submitted to the court thereunder, there is no matter of fact which we can review. Harris v. Newsom, 23 F.(2d) 652, 655, this court. This disposes of the case.

However, if we were permitted to examine the evidence as to residence, we would say that there was a conflict in the evidence submitted to the court, and that the trial court’s determination thereof should not be disturbed.

The judgment should be, and is, affirmed.

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STONE, Circuit Judge.

This is an action for personal injuries brought in the United States District Court by the plaintiff in error. A plea of abatement challenging the jurisdiction on the ground of the lack of diversity of citizenship was filed. It does not seem to have been formally acted upon. Thereafter an answer was filed which renewed the subject-matter of the plea in abatement. Thereafter the case came on for trial, a jury was orally waived, and the cause tried to the court. Testimony was adduced and the cause submitted on the objections to the jurisdiction. The court sustained such objections and dismissed the cause for lack of jurisdiction, without prejudice. From that judgment, this writ of error is sued.

The only question presented here is as to the jurisdictional matter. This depends upon the fact of whether plaintiff was a citizen of Nebraska at the time the suit was brought. As a jury was waived without the written stipulation required by the statute, and as evidence was introduced and submitted to the court thereunder, there is no matter of fact which we can review. Harris v. Newsom, 23 F.(2d) 652, 655, this court. This disposes of the case.

However, if we were permitted to examine the evidence as to residence, we would say that there was a conflict in the evidence submitted to the court, and that the trial court’s determination thereof should not be disturbed.

The judgment should be, and is, affirmed.

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Bluebook (online)

31 F.2d 757, 1929 U.S. App. LEXIS 3556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-knox-county-ca8-1929.

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