Tatum Bros. Real Estate & Investment Co. v. Shenk

Fifth Circuit

Tatum Bros. Real Estate & Investment Co. v. Shenk

246 F. 684, 158 C.C.A. 640, 1917 U.S. App. LEXIS 1398

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 13, 1917

DocketNo. 3062

StatusPublished

This text of 246 F. 684 (Tatum Bros. Real Estate & Investment Co. v. Shenk) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tatum Bros. Real Estate & Investment Co. v. Shenk, 246 F. 684, 158 C.C.A. 640, 1917 U.S. App. LEXIS 1398 (5th Cir. 1917).

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Opinion

PER CURIAM.

The sufficiency of the plaintiff’s (appellee’s) aver-ments of diversity of citizenship to give the court jurisdiction of the case is not questioned, and is not open to question. The sufficiency of the evidence adduced to support the averment of the plaintiff’s citizenship is questioned in this court for the first time. We are of opinion that that evidence well supports the conclusion that prior to the bringing of the suit the plaintiff was a resident citizen of a state other than Florida, the state in which the suit was brought, and that at the time the suit was brought he had not lost such citizenship.

A phase of the evidence adduced well supported the findings made by the master and which were approved by the trial court. That evidence consisted principally of testimony of witnesses given in the presence of the trial judge before the reference to the master was made. The evidence relied on as being opposed to the findings mentioned is not such as to make it clearly appear that those findings were improper.

The conclusion is that the presumption in favor of the correctness of the findings upon which the decree appealed from was based has not been overcome, and that it does not appear from the record that that decree was erroneous. It is affirmed.

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PER CURIAM.

The sufficiency of the plaintiff’s (appellee’s) aver-ments of diversity of citizenship to give the court jurisdiction of the case is not questioned, and is not open to question. The sufficiency of the evidence adduced to support the averment of the plaintiff’s citizenship is questioned in this court for the first time. We are of opinion that that evidence well supports the conclusion that prior to the bringing of the suit the plaintiff was a resident citizen of a state other than Florida, the state in which the suit was brought, and that at the time the suit was brought he had not lost such citizenship.

A phase of the evidence adduced well supported the findings made by the master and which were approved by the trial court. That evidence consisted principally of testimony of witnesses given in the presence of the trial judge before the reference to the master was made. The evidence relied on as being opposed to the findings mentioned is not such as to make it clearly appear that those findings were improper.

The conclusion is that the presumption in favor of the correctness of the findings upon which the decree appealed from was based has not been overcome, and that it does not appear from the record that that decree was erroneous. It is affirmed.

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246 F. 684, 158 C.C.A. 640, 1917 U.S. App. LEXIS 1398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatum-bros-real-estate-investment-co-v-shenk-ca5-1917.