SPEER, District Judge.
The plaintiffs, Howes & Strevell, averring themselves to be residents of Miles City, in the county of Custer, in the state of Montana, sued the defendants, who, it appears, are citizens of the Northern district of Texas. On the trial, verdict and judgment were rendered in behalf of the plaintiffs. Motion for new trial was made by the defendants, which was overruled, and the cause was brought here by writ of error.
When called for disposition, counsel for plaintiffs in error moved to dismiss the writ of error, and to remand the case, with instructions to the circuit court to dismiss it, because the record wholly failed to disclose the proper diversity of citizenship necessary to confer jurisdiction upon the circuit court or upon this court. It is well settled that the necessary diversity of citizenship must appear in the record in order to give jurisdiction to a court of the United States, where such diversity is relied upon for that purpose. Railway Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510; Insurance Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193. In the latter case, which was an action [658] in the circuit court of the United States by an administrator against an insurance company, although it appeared that the intestate was a citizen of the state in which the action was brought, and that let- ■ ters of administration were granted the plaintiff in that state, and that the defendant was a citizen of another state, but where there was a' failure to allege the citizenship of the administrator himself, it was.held that the circuit court did not have jurisdiction, and that the absent averment could not be supplied by an amendment offered in the supreme court. It was further held, however, that the court below, after the case had been remanded, might, in its discretion, allow the amendment to be made. “The jurisdiction must positively appear. It is not enough that it may be inferred argumentatively.” Browne v. Keene, 8 Pet. 112; Robertson v. Cease, 97 U. S. 646. And therefore a statement that the plaintiff is a resident of a state other than that of the defendant will not suffice.
Notwithstanding the absence of jurisdiction, because of the defective averments above specified, we have, as an inherent power of an appellate court, jurisdiction to dismiss the writ of error, and remand the cause for the appropriate action of the circuit court; and, apon the motion of the plaintiffs in error, it will be so ordered.
This brings us to an important consideration, presented by the motion of the defendants in error, viz. that the costs of the appeal should be taxed on the plaintiffs in error. In support of this motion, several important suggestions are presented for the consideration of the court. It is sufficiently made to appear from the record that the defendants -reside in the state of Texas. It is otherwise evident that the assignors or original payees of" one of the bonds upon which the action was based were, in fact, citizens of the state of Montana. The residence and the place of business of these plaintiffs were for a long time in Custer county, in the latter state. This was well known to the defendants in the circuit court, who'are the plaintiffs in error here. Further, the cause was closely contested before the court and jury; and when, after an arduous and protracted trial, verdict and judgment for a large amount were rendered for the plaintiffs, a motion for new trial was made, and 13 distinct grounds were indicated as reasons why the verdict should be set aside, and a new trial granted. These were all overruled. Then the defendants presented to the trial judge 11 bills of exceptions, voluminous enough to compass 42 pages of the printed-record. In all of this defensive literature no intimation was given, either to the court or to the plaintiffs, that the fatal want of jurisdiction appeared. No motion in arrest of judgment was made. But this was not all. The defendants in the circuit court, in framing their application for writ of error and supersedeas, presented 16 assignments of error, covering 8 additional pages of the printed record before us; and still no opportunity was offered the plaintiffs to retrieve their inadvertence, or to the court to take the appropriate order. But it is said that it is no part of the defendants’ business to make out the plaintiffs’ case. It is certain, however, that it was the business of the defendants’ counsel to deal openly and fairly with the court.. The day for brilliant strategical displays in judicial trials has departed. Nor is a court of the United States a congenial spot for surprisals and [659] ambuscades. The defendants even now refrain from suggesting that they did not discover this defect while the cause was pending,, and yet it is not to be questioned that the citizenship of the plaintiffs, if properly averred, would have supported the jurisdiction. Now, whatever difference of opinion there may be as to the obligation of the defendants to make plaintiffs aware of the technical, but fatal, oversight, the noblesse of the robe — indeed, the moral and legal obligation of frankness and fairness to the court — required that learned counsel should not put the judge himself on trial for error before this court without disclosing to him the attack they would make; and yet no exception for want of jurisdiction in the court below was incorporated in the numerous assignments of error, and for the first time is this objection made when the cause is sounded for argument before this court.
Free access — add to your briefcase to read the full text and ask questions with AI
SPEER, District Judge.
The plaintiffs, Howes & Strevell, averring themselves to be residents of Miles City, in the county of Custer, in the state of Montana, sued the defendants, who, it appears, are citizens of the Northern district of Texas. On the trial, verdict and judgment were rendered in behalf of the plaintiffs. Motion for new trial was made by the defendants, which was overruled, and the cause was brought here by writ of error.
When called for disposition, counsel for plaintiffs in error moved to dismiss the writ of error, and to remand the case, with instructions to the circuit court to dismiss it, because the record wholly failed to disclose the proper diversity of citizenship necessary to confer jurisdiction upon the circuit court or upon this court. It is well settled that the necessary diversity of citizenship must appear in the record in order to give jurisdiction to a court of the United States, where such diversity is relied upon for that purpose. Railway Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510; Insurance Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193. In the latter case, which was an action [658] in the circuit court of the United States by an administrator against an insurance company, although it appeared that the intestate was a citizen of the state in which the action was brought, and that let- ■ ters of administration were granted the plaintiff in that state, and that the defendant was a citizen of another state, but where there was a' failure to allege the citizenship of the administrator himself, it was.held that the circuit court did not have jurisdiction, and that the absent averment could not be supplied by an amendment offered in the supreme court. It was further held, however, that the court below, after the case had been remanded, might, in its discretion, allow the amendment to be made. “The jurisdiction must positively appear. It is not enough that it may be inferred argumentatively.” Browne v. Keene, 8 Pet. 112; Robertson v. Cease, 97 U. S. 646. And therefore a statement that the plaintiff is a resident of a state other than that of the defendant will not suffice.
Notwithstanding the absence of jurisdiction, because of the defective averments above specified, we have, as an inherent power of an appellate court, jurisdiction to dismiss the writ of error, and remand the cause for the appropriate action of the circuit court; and, apon the motion of the plaintiffs in error, it will be so ordered.
This brings us to an important consideration, presented by the motion of the defendants in error, viz. that the costs of the appeal should be taxed on the plaintiffs in error. In support of this motion, several important suggestions are presented for the consideration of the court. It is sufficiently made to appear from the record that the defendants -reside in the state of Texas. It is otherwise evident that the assignors or original payees of" one of the bonds upon which the action was based were, in fact, citizens of the state of Montana. The residence and the place of business of these plaintiffs were for a long time in Custer county, in the latter state. This was well known to the defendants in the circuit court, who'are the plaintiffs in error here. Further, the cause was closely contested before the court and jury; and when, after an arduous and protracted trial, verdict and judgment for a large amount were rendered for the plaintiffs, a motion for new trial was made, and 13 distinct grounds were indicated as reasons why the verdict should be set aside, and a new trial granted. These were all overruled. Then the defendants presented to the trial judge 11 bills of exceptions, voluminous enough to compass 42 pages of the printed-record. In all of this defensive literature no intimation was given, either to the court or to the plaintiffs, that the fatal want of jurisdiction appeared. No motion in arrest of judgment was made. But this was not all. The defendants in the circuit court, in framing their application for writ of error and supersedeas, presented 16 assignments of error, covering 8 additional pages of the printed record before us; and still no opportunity was offered the plaintiffs to retrieve their inadvertence, or to the court to take the appropriate order. But it is said that it is no part of the defendants’ business to make out the plaintiffs’ case. It is certain, however, that it was the business of the defendants’ counsel to deal openly and fairly with the court.. The day for brilliant strategical displays in judicial trials has departed. Nor is a court of the United States a congenial spot for surprisals and [659] ambuscades. The defendants even now refrain from suggesting that they did not discover this defect while the cause was pending,, and yet it is not to be questioned that the citizenship of the plaintiffs, if properly averred, would have supported the jurisdiction. Now, whatever difference of opinion there may be as to the obligation of the defendants to make plaintiffs aware of the technical, but fatal, oversight, the noblesse of the robe — indeed, the moral and legal obligation of frankness and fairness to the court — required that learned counsel should not put the judge himself on trial for error before this court without disclosing to him the attack they would make; and yet no exception for want of jurisdiction in the court below was incorporated in the numerous assignments of error, and for the first time is this objection made when the cause is sounded for argument before this court.
It is settled that, when a decree or judgment of the circuit court is reversed for want of jurisdiction in this court, we make such order in respect to the costs as justice and right may seem to require. Railway Co. v. Swan, supra; Hancock v. Holbrook, 112 U. S. 229, 5 Sup. Ct. 115; Peper v. Fordyce, 119 U. S. 469, 7 Sup. Ct. 287. The courts of the United States are courts of limited jurisdiction. The judges of these courts/in the proper performance of their duty, carefully refrain from entertaining a cause, unless the jurisdiction affirmatively appears. Whenever it appears in a case in these courts that jurisdiction does not exist, the court will, on its own motion, raise the question, and dismiss the cause. This, in numerous cases, has been held to be the duty of the court; and counsel, who are, or ought to be, aware of a palpable absence of jurisdiction, may not sit by during the trial of the cause, and, after all the proceedings in the latter court have been completed, then present their bill of exceptions, and bring the cause on a writ of error to this court, without incurring the consequences of the useless and expensive performance. The objection to the want of jurisdiction should have been made in limine, and, if not presented then, it would have, been competent and proper after verdict for the defendants to have made a motion in arrest of judgment. They did not choose to do so, but themselves brought to this court the record, which, at a glance, we are compelled to remand. It cannot be questioned that if the learned judge of the court below had been informed at any stage of the proceedings before him that the plaintiffs merely alleged that they were residents, and failed to allege that they were citizens, of another state than that of which the defendants were citizens, he would have declined to hear the cause. The proceedings by writ of error were therefore superfluous, and order will be taken that plaintiffs in error, who instituted them, should pay the costs therefor.