Benjamin v. City of New Orleans

Fifth Circuit

Benjamin v. City of New Orleans

74 F. 417, 20 C.C.A. 591

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 28, 1896

DocketNo. 466

StatusPublished

Cited by2 cases

This text of 74 F. 417 (Benjamin v. City of New Orleans) 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.

Bluebook

Benjamin v. City of New Orleans, 74 F. 417, 20 C.C.A. 591 (5th Cir. 1896).

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Opinion

SPEER, District Judge.

In this cause the averments upon which plaintiff relied to maintain the jurisdiction of the court are made in the following amendment:

“By leave of court first had and obtained, the complainant comes now and amends his bill herein by inserting at the end of the sixteenth paragraph, and before the seventeenth paragraph, thereof, on page 14 of said bill, the following averment, viz.: ‘And your orator avers that each of said persons in whose favor said claims accrued, and to whom said certificates were issued, are now. and were on the 9th day of February, 1891, citizens, respectively, of states other than the state of Louisiana, and competent, as such citizens, to maintain suit in this honorable court against the defendants for the recovery of said indebtedness represented by said' certificates, if no assignment or transfer thereof had been made.’ Wherefore complainant prays as he hath already prayed, and that said defendants be required to answer this amendment on or before the next rule day, and for general relief.

“[Signed] Bouse & Grant, Solicitors for Comp’t.”

The circuit court, upon demurrer to the bill, held that the proper diversity of citizenship to give jurisdiction was not properly alleged, and held, further, that the plaintiff’s bill was defective for want of equity. We do not think that the jurisdiction of the circuit court was made to appear. It must affirmatively and plainly appear. The defendant being a corporation of the state of Louisiana, the plaintiff, the assignee of a number of claims transferred to him by persons who were members of the late metropolitan police of this city, may not sue in the circuit court unless the assignors themselves could have sued if no assignment or transfer had been made. The assignors could not have sued unless they had been at the time of the transfer, in fact, citizens of stales other than [418]*418Louisiana, and it was essential to the jurisdiction of the court that such other state or states be specially designated. The defendant is entitled to actual and definite notice in the plaintiff’s pleading of the citizenship, or alleged citizenship, of each assignor. No fact in the pleadings of the plaintiff, in these courts, can be more material, for the authority of the court to act depends upon it. It ■was not sufficient, then, to say that the assignors were “citizens, respectively, of states other than the state of Louisiana, and competent, as such citizens, to maintain suit in this court.” Jurisdiction cannot be' inferentially averred. Bradley v. Rhines, 8 Wall. 393; Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173; Parker v. Ormsby, 141 U. S. 83, 11 Sup. Ct. 912; New Orleans v. Benjamin, 153 U. S. 411, 14 Sup. Ct. 905; Hunt v. Howes (C. C. A., 5th circuit, decided at this term) 74 Fed. 657. With relation to the decision of the circuit court that the plaintiff’s bill was without equity, it is enough to say that, since the court had no jurisdiction whatever of the parties, that holding was, we think, superfluous. It was enough to sustain the demurrer because the necessary diversity of citizenship was not properly alleged. We therefore affirm tiie judgment of the circuit court, without prejudice to the right of plaintiff to sufficiently present his cause, if any he has, in a court having jurisdiction.

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SPEER, District Judge.

In this cause the averments upon which plaintiff relied to maintain the jurisdiction of the court are made in the following amendment:

“By leave of court first had and obtained, the complainant comes now and amends his bill herein by inserting at the end of the sixteenth paragraph, and before the seventeenth paragraph, thereof, on page 14 of said bill, the following averment, viz.: ‘And your orator avers that each of said persons in whose favor said claims accrued, and to whom said certificates were issued, are now. and were on the 9th day of February, 1891, citizens, respectively, of states other than the state of Louisiana, and competent, as such citizens, to maintain suit in this honorable court against the defendants for the recovery of said indebtedness represented by said' certificates, if no assignment or transfer thereof had been made.’ Wherefore complainant prays as he hath already prayed, and that said defendants be required to answer this amendment on or before the next rule day, and for general relief.

“[Signed] Bouse & Grant, Solicitors for Comp’t.”

The circuit court, upon demurrer to the bill, held that the proper diversity of citizenship to give jurisdiction was not properly alleged, and held, further, that the plaintiff’s bill was defective for want of equity. We do not think that the jurisdiction of the circuit court was made to appear. It must affirmatively and plainly appear. The defendant being a corporation of the state of Louisiana, the plaintiff, the assignee of a number of claims transferred to him by persons who were members of the late metropolitan police of this city, may not sue in the circuit court unless the assignors themselves could have sued if no assignment or transfer had been made. The assignors could not have sued unless they had been at the time of the transfer, in fact, citizens of stales other than [418]*418Louisiana, and it was essential to the jurisdiction of the court that such other state or states be specially designated. The defendant is entitled to actual and definite notice in the plaintiff’s pleading of the citizenship, or alleged citizenship, of each assignor. No fact in the pleadings of the plaintiff, in these courts, can be more material, for the authority of the court to act depends upon it. It ■was not sufficient, then, to say that the assignors were “citizens, respectively, of states other than the state of Louisiana, and competent, as such citizens, to maintain suit in this court.” Jurisdiction cannot be' inferentially averred. Bradley v. Rhines, 8 Wall. 393; Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173; Parker v. Ormsby, 141 U. S. 83, 11 Sup. Ct. 912; New Orleans v. Benjamin, 153 U. S. 411, 14 Sup. Ct. 905; Hunt v. Howes (C. C. A., 5th circuit, decided at this term) 74 Fed. 657. With relation to the decision of the circuit court that the plaintiff’s bill was without equity, it is enough to say that, since the court had no jurisdiction whatever of the parties, that holding was, we think, superfluous. It was enough to sustain the demurrer because the necessary diversity of citizenship was not properly alleged. We therefore affirm tiie judgment of the circuit court, without prejudice to the right of plaintiff to sufficiently present his cause, if any he has, in a court having jurisdiction.

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74 F. 417, 20 C.C.A. 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-city-of-new-orleans-ca5-1896.

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