Kelly v. Harding

U.S. Circuit Court for the District of Southern New York

Kelly v. Harding

14 F. Cas. 266, 5 Blatchf. 502, 1867 U.S. App. LEXIS 764

CourtU.S. Circuit Court for the District of Southern New York

DecidedOctober 15, 1867

StatusPublished

This text of 14 F. Cas. 266 (Kelly v. Harding) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Harding, 14 F. Cas. 266, 5 Blatchf. 502, 1867 U.S. App. LEXIS 764 (circtsdny 1867).

Pincite

Opinion

SHIPMAN, District Judge.

The plaintiff, in his declaration, alleges, that he is a citizen of the state of Georgia, and that the defendants are citizens of the state of Massachusetts. This allegation excludes the jurisdiction of this court. The fact that a plea to the jurisdiction was not put in by the defendant, instead of a plea, to the merits, does not help the case. One of the parties must be a citizen of the state where the suit is brought, and there must be a positive averment of that fact on the record. But, instead of that, the-averment is exactly the reverse, and in advance shows that the court is without authority to try the cause. It is hardly necessary to say, that this is not like a case where the court has jurisdiction over the parties, after the service of process on the defendant, or a case where, though no service has been made on the defendant, he comes in and submits himself to the jurisdiction of the court, thus waiving a provision of the statute enacted for his protection. This court has no jurisdiction whatever over controversies between parties, all of whom, plaintiffs as well as defendants, are citizens-of states other than that in which the suit is brought. This suit is therefore coram non judice, and a judgment upon its merits would be a nullity. Let an order be entered dismissing the suit for want of jurisdiction, without costs.

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SHIPMAN, District Judge.

The plaintiff, in his declaration, alleges, that he is a citizen of the state of Georgia, and that the defendants are citizens of the state of Massachusetts. This allegation excludes the jurisdiction of this court. The fact that a plea to the jurisdiction was not put in by the defendant, instead of a plea, to the merits, does not help the case. One of the parties must be a citizen of the state where the suit is brought, and there must be a positive averment of that fact on the record. But, instead of that, the-averment is exactly the reverse, and in advance shows that the court is without authority to try the cause. It is hardly necessary to say, that this is not like a case where the court has jurisdiction over the parties, after the service of process on the defendant, or a case where, though no service has been made on the defendant, he comes in and submits himself to the jurisdiction of the court, thus waiving a provision of the statute enacted for his protection. This court has no jurisdiction whatever over controversies between parties, all of whom, plaintiffs as well as defendants, are citizens-of states other than that in which the suit is brought. This suit is therefore coram non judice, and a judgment upon its merits would be a nullity. Let an order be entered dismissing the suit for want of jurisdiction, without costs.

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Bluebook (online)

14 F. Cas. 266, 5 Blatchf. 502, 1867 U.S. App. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-harding-circtsdny-1867.