Tuesday, November 30, 2010


I like to think I'm a reasonably intelligent person but there are some
things that are just beyond my ken. One of them is legalese. I've
been struggling to make heads or tails out the legal case cousin
Cornelius T. Dunham became embroiled in with an apparently
tenacious woman named Catherine Carson over a rice plantation
in South Carolina. Sometime during the Civil War a man named
Edmund Hyatt had taken out a mortgage on it with two men named
McBurney and Gillespie. Then C.T. was "assigned" the mortgage
and sought to foreclose, but by this time Ms.Carson was in possession
of the property and the lawsuits began to fly.

It appear the legal war was waged through the courts of South Carolina
and Massachusetts with two appearances at the United States Supreme
Court, one of which is described in the following record. I find it ironic
that Catherine Carson's case hinged on her claim that C.T. Dunham was 
a resident of South Carolina, not Massachusetts While he had once lived
and worked in Charleston, by the time this case was argued he and his 
family had long since returned to his native Massachusetts and taken up
residence there as the Federal Censuses show. My best guess is that
it was a delaying tactic on Ms. Carson's part since she'd been fighting
the foreclosure tooth and nail. It's at times like this that I had the legal
expertise of Perry Mason or Craig Manson!

So here are some of the particulars of the appearance of my cousin
before the U.S. Supreme Court. Oh, by the way, he won.



Submitted March 28,1887. — Decided April 25,1887.

When a case is removed from a state court to a Circuit Court of the
United States on the ground that the controversy is wholly between
citizens of different states, and the adverse party moves in the Circuit
Court to remand the case, denying the averments as to citizenship,
the burden is on the party at whose instance the suit was removed
to establish the citizenship necessary to give jurisdiction to the
Circuit Court.

Opinion of the Court.
A petition filed in a state court, showing on its face sufficient ground
for the removal of the cause to a Circuit Court of the United States,
may be amended in the latter court by adding to it a fuller statement
of the facts, germane to the petition, upon which the statements in
it were grounded.

In order to give jurisdiction to a Circuit Court of the United States
of a cause by removal from a state court, under the removal clauses
of the act of March 3, 1875, c. 137, it is necessary that the construction
ether of the Constitution of the Uuited States, or of some law or
treaty of the United States, should be directly involved in the suit;
but the jurisdiction for review of the judgments of state courts
given by § 709 of the Revised Statutes extends to adverse decisions
upon rights and titles claimed under commissions held or authority
exercised under the United States, as well as to rights claimed
under the Constitution laws or treaties of the United States.

A mortgage made in enemy's territory to a loyal citizen of the United
States does not necessarily imply unlawful intercourse between the
parties, contrary to the non-intercourse proclamation and act.

A petition for the removal of a cause from a state court should set
out the facts on which the right is claimed; not the conclusions of
law only. This was an appeal from an order of a Circuit Court 

remanding a case to the state court from which it had been 
removed. The case is stated in the opinion of the court.

Mr. Clarence A. Seward and Mi: James Lowndes for appellant. 

Mr. A. G. Magrath and Mr. H. E. Young also filed a brief for

Mr. William E. Earle for appellee.

Mr. Chief Justice Waite delivered the opinion of the court.

This is an appeal under § 5 of the act of March 3, 1875, c. 137, 18
Stat. 470, from an order of the Circuit Court remanding a suit which
had been removed from a state court. The record shows that on the
11th of August, 1886, C. T. Dunham, the appellee, filed a bill in equity
in the Court of Common Pleas of Berkeley County, South Carolina,
against Caroline Carson, to foreclose a mortgage made by William
McBurney and Alfred L. Gillespie to Edmund Hyatt, which had been
assigned to Dunham. Is is alleged that Mrs. Carson is in possession
of the mortgaged property, and that she and the plaintiff are the
only necessary parties to the suit. Service was made on Mrs. Carson
by publication, for the reason, as shown by affidavit, that she did
not reside in South Carolina, but in Rome, Italy. On the 9th of October,
1886, which was the day service on her was completed, she entered
her appearance by counsel, and at the same time filed her petition
for the removal of the suit to the Circuit Court of the United States
for the District of South Carolina, on the following grounds:

" I. That all the matters therein have been already adjudged in her
favor by the Circuit Court of the United States for the District of
South Carolina.

"II. That the complainant is barred of his present action by a
judgment of the said court in her favor on the matter in controversy.

" III. That this court is without jurisdiction because a prior suit on the
 like matter is pending in the aforesaid court of the United States,
which, by its receiver, has possession of the subject matter of
this suit.

" IV. That the bond and mortgage sued on are void under the laws
of the United States.

"V. That the defendant holds title to Dean Hall plantation, the property
involved in this suit and mentioned in the complaint in the above-
entitled suit, under an authority exercised under the United States,
to wit, under a conveyance from the United States marshal for the
district of South Carolina, made under a decree of the United States
Circuit Court, for the said district, all of which will more fully
appear by her answer.

"The controversy in said suit is also wholly between citizens of
different states, viz., between the said C. T. Dunham, who, as your
petitioner is informed and avers, was, at the commencement of said
suit, and now is, a citizen of the state of South Carolina, and your
petitioner, who was, at the commencement of said suit, and now is,
a citizen of the state of Massachusetts; or the controversy in said
suit is wholly between Mary A. Hyatt, who was, at the commencement
of said suit, and now is, a citizen of the state of New York, and who is
the sole and only real party in interest in said suit and in said 

controversy, and your petitioner, who was, at the commencement of 
the said suit, and now is, a citizen of the state of Massachusetts, and 
which controversy is the only controversy in said suit; that the said 
Mary A. Hyatt is the real party plaintiff in said suit, and the said 
C. T. Dunham is but a nominal and colorable plaintiff, and that his 
name has been used merely for the purpose of defeating the 
jurisdiction of the Circuit Court of the United States for the 
District of South Carolina, and that said suit is, in fact, a
controversy wholly between the said Mary A. Hyatt and your 

petitioner, notwithstanding the assignment to the said C. T. 
Dunham in the complaint in said suit mentioned."

On the 11th of November Dunham filed in the Circuit Court an answer
to the petition of Mrs. Carson for removal, in which he denied that he
was a citizen of South Carolina, and averred that he was a citizen of the
same state with her, namely, Massachusetts. The issue made by this
answer was set down for trial in the Circuit Court, accompanied by an
order " that on such trial the burden shall be upon the defendant,
Caroline Carson, to show that the plaintiff, C. T. Dunham, is not a
citizen of Massachusetts."

Upon this trial it was substantially admitted that Dunham was at the
commencement of the suit a citizen of Massachusetts, and thereupon
the suit was remanded. From an order to that effect this appeal was 


The Circuit Court did not err in holding that the burden of proof was on
Mrs. Carson to show that Dunham was not a citizen of Massachusetts.
As she was the actor in the removal proceeding, it rested on her to
make out the jurisdiction of the Circuit Court. Dunham having denied
that he was a citizen of South Carolina, as she had stated in her petition,
and having claimed that he was in fact a citizen of Massachusetts, the
same as herself, the affirmative was on her to prove that his claim was
not true, or, in other words, that he was a citizen of another state
than her own. 

Davis, J. Bancroft, United States Reports Vol 121: Cases Adjudged 
in the Supreme Court at October Term, 1886, Banks and Brothers,
Albany& New York 1887 pp421-430

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