The north Mississippi herald. (Water Valley, Yalobusha Co., Miss.) 1888-1929, 1922-05-05
RUSSELL -BIRKHEAD
CASE DISMISSED
Judge Holmes Sustains Motion
of the Defense and Dismiss
es Case-Will Be Promptly
Filed at Oxford and Come
up for Trial in December.

not De tTleQ IN JacEsOn,
Judge E. R. Holmes of the federal
court Tuesday dismissed the case
on a motion of the defense, claim
ing want of jurisdiction as the
grounds that Governor Russell was
not resident of the southern dis
trict of Mississippi, but that his le
gal residence was in Oxford, which
is in the northern district.
In rendering his decision, Judge
Holmes said that it was not so much
question of jurisdiction as of
venue, and his decision was based on
an Interpretation of Section 81 of
the judicial code relative to trans
itory actions.
First Thing Called
This 100000 celebrated damage
suit, with it's sensational allegations
of seduction and breach of promise,
was the first thing taken up at the
morning session Tuesday and was
decided shortly after noon.
The day before on the cali of the
docket, attorneys for Governor Rus
sell entered motion of want of jur-
isdiction on the ground that the gov
ernor was not citizen of this dis
by agreement Tuesday morning was
set as the time for argument of that
point.
Attorneys for Miss Birkhead, T.
r. Foster of Vicksburg and Camp
bell and Campbell of Yazoo, read a
brief answer to the motion when
court convened Tuesday morning,
setting forth that the motion to
dismiss was not the proper proce-
dure in raising the question of juris-
diction, but that the plaintiff should
have filed motion for the removal
of the case to the Oxford division
of the northern district, in which
city the governor claims to hold his
legal residence this should have
been done, the plaintiff continued,
on a plea in abatement, holding that
the federal court has jurisdiction
wherever a plaintiff can be served
with process, and that Governor
Russell is not in fact citizen of Ok
ford, but is actually residing in Jack
son, and has been since he was in
augurated governor nearly two years
ago.
Testifies in His Own Behalf
Governor Russell took the stand
and testifing in his own behalf said
that Jackson was not and never had
been hs residence; that he was a
resident of Oxford and had been
since 1897, that he was born in the
county of Lafayette, of which Ok
ford is the county seat, and had al
ways claimed that as his legal resi-
denee; that he was still registered
voter of Lafayette county and the
city Of Oxford; owner of home that
was now occupied by his brother;
maintained law Office and law
library there, and intended to re-
turn to the practice of law at that
place when his term as governor
was Completed.
Attorneys for Miss Birkhead ques-
toned the governor only briefly, suf-
ficient only to bring out the point
that he had an agreement with his
brother to sell him the house at Ok
ford, and that before coming TO Jack
son to take up his duties as governor,
he sold off the greater portion of his
household furnishings.
Asked by Mr. Foster the direct
question, the governor emphatlcally
denied that just previous to his in
auguration as governor he had re-
marked that he had sold his Oxford
property and never intended to re-
turn to that place.
Arguments in Case
Attorneys for Miss Birkhead told
Judge Holmes that they could COM
plete their arguments in fifty min
utes, but this did not suit the other
side. Mr.. Cassidy, leading counsel
e. x.I 70, rNsNtssa
time, and Judge Holmes decided to
allow each side one hour in which to
sum up. 1t was nearly III o'clock
when the arguments were opened by
Mr.. Cassidy, seeking to prove that
the governor was not a resident of
this district and that the suit could
have no standing in court of the
southern district, in which he was
assisted by Messers Price and Hous-
ton, associate counsel.
Counsel for Miss Birkhead main
tanned that the question of jurisdic-
tion had not been properly brought.
That instead of raising the question
of jurisdiction and dismissal, plea
in abatement should have been filed
or a motion for removal to Oxford
made.
Goes Over to December
Immediately after Judge Holmes
had announced his decision, counsel
for Miss Birkhead states that the
suit would be promptly filed in the
Oxford division of the northern dis
trict, which means that it cannot be
heard until December. The regular
term comes up in June, but due to
the fact that special term was re-
Gently held at Oxford the June term
will be pretermitted, which will car
ry the next court over to December.
Talk of Compromise
Notwithstanding the fact that