DAVIS v. KNOX COUNTY

DAVIS v. KNOX COUNTY. Circuit Court of Appeals, Eighth Circuit. March 20, 1929. No. 8125. J. F. Green, of Creighton, Neb., and M. F. Harrington, of O’Neill, Neb., for plaintiff in error. P. H. Peterson, of Wausa, Neb., Charles H. Kelsey, of Norfolk, Neb., and W. A. Me-serve, of Creighton, Neb., for defendant in error. Before STONE and KENYON, Circuit Judges, and JOHNSON, District Judge. [MAJORITY — STONE, Circuit Judge.] 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.