MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
This is a writ of error brought under section 5 of the act of March 3, 1875, 18 Stat. 470, ch. 137, to reverse an order of the Circuit Court remanding a case which had been removed from a State court. The suit was brought in a State court of Iowa on the 19th of November, 1883, by Ohle, the defendant in error, described in the petition as a citizen of Illinois, against the Chicago and Northwestern Railway Company, an Illinois corporation, to recover damages for an injury sustained by him
In the course of the trial, also, Ohle offered in evidence an affidavit, filed in the case on behalf of the company, for the purpose of requiring him to give security for costs because he was a non-resident of Iowa. That affidavit was as follows:
"I, H.G. Burt, being first duly sworn, on oath say: That I am the superintendent of the Iowa Division of the Chicago & Northwestern Railway Company, which includes the main line from Clinton, Iowa, to Council Bluffs, Iowa, together with several branches; that I am acquainted with the facts in regard to the injury of Gus. B. Ohle, for which the above suit is brought, and that the defendant has a good defence to the entire claim made by the plaintiff in said cause, and that the plaintiff is a non-resident of the State of Iowa, as he claims in his petition in this case, and as I believe."
To the introduction of this affidavit the railway company objected. This objection was overruled, and an exception taken.
"2. In order to acquire a domicile and citizenship in Illinois the defendant must have gone there in November, 1883, with the intention of remaining there permanently then; it was not enough if his intention was to go on to Janesville and finish his education there and then return to Illinois to remain permanently. If such was not his intention his citizenship in Illinois would only date from the time he in fact went there to stay permanently, which, according to his own testimony, was March 13th, 1884.
"3. It is shown by the uncontroverted testimony of the plaintiff that he was a citizen of Iowa before he went to Janesville for the temporary purpose of acquiring an education in telegraphy; that in November, 1883, when it is claimed he changed his citizenship, he went to Chicago, in the State of Illinois, on his way to Janesville to complete his studies; that he remained in Chicago only temporarily at that time, and did not go to Illinois permanently until March 13th, 1884. Under these circumstances the jury are instructed as a matter of law that plaintiff did not become a citizen of Illinois until the date last named, namely, March 13th, 1884."
These requests were refused, but the court did charge, among other things, in these words:
"12. Now the point that you are to decide, gentlemen, is this: Did the plaintiff, Gus. B. Ohle, at any time leave the State of Iowa for the purpose of taking up, actually and in good faith, his residence and citizenship in Illinois? Now, I use the word residence, meaning this: It would not be sufficient merely to show that he went and resided in the sense of living in Illinois. Residence is evidence of the citizenship. You are ultimately to find whether he became a citizen of Illinois. In deciding that question you have a right to consider what he did in the matter of residence; that is, where he actually lived; the place he occupied, what we ordinarily mean by the term living. Now, it is claimed on the part of Ohle that he went to Chicago in November, 1883; that it was his intent to remove to the State of Illinois, and with the purpose of completing his
"It then remains for you to determine the object and intent that he then had.
"13. Now, it is contended on the part of the defendant that he did not acquire citizenship in Chicago until he went there in March, 1884, after he had completed his schooling in Janesville. Now, if he did not, if that was the first time that he actually went to Chicago with the intent to remain there and take up his citizenship and his residence there, why then you would have to find that that was the time that he lost his citizenship in Iowa and acquired it in Illinois. Therefore, as I say, the question is what was his intent. By way of illustration, if when he went to the city of Chicago in November, 1883, his object and purpose were simply to go through Chicago to Janesville to complete his education, with the intention some time in the future, after he had completed his education, of going
The company in due time excepted to the last paragraph in the charge beginning with the words "By way of illustration" and continuing until the end, and to the refusals to charge as requested.
The jury found that Ohle was a citizen of Illinois when the suit was begun, and the court thereupon remanded the cause. This writ of error was brought to reverse an order to that effect, and the errors assigned are:
1. That the court erred in refusing to charge as requested;
2. That it erred in that part of the charge as given which was excepted to; and
3. That it erred in admitting the affidavit objected to in evidence.
The charge as given covered the requests that were made. It stated clearly to the jury what was necessary in order to make a change of citizenship, and we are unable to find anything wrong in the rules which were laid down. The jury were told as distinctly as it could be expressed in words that Ohle did not gain a citizenship in Illinois when he went there on the 6th of November, unless he did in good faith leave Iowa, and giving up his residence there go to Illinois, and actually and in good faith take up his permanent residence in that State at that time. Clearly this covers the whole case, and as the jury found that he had gained his citizenship in Illinois when the suit was begun, the error, if any, was with the jury in its verdict on the evidence and not with the court in its charge on the law. There is nothing in the requests to charge that is not in the charge as given, except those parts of the requests which imply a state of facts different from what the jury must have found. There was certainly some evidence that when Ohle went to Chicago on the 6th of November he intended to take
We see no error in the admission of the affidavit in evidence. The affidavit having been filed in the cause by the company as a ground for obtaining an order of the court in its favor, was competent evidence against it on the trial of another issue; and the fact that it was sworn on information and belief affected only its weight and not its competency. Pope v. Allis, 115 U.S. 363.
After the verdict the court had nothing to do but to remand the suit; its order to that effect is consequently