People ex rel. Vincent v. National Surety Corp.

147 F.2d 997, 1945 U.S. App. LEXIS 2217

Opinion

PER CURIAM.

It appearing that the cause was below dismissed because of lack of diversity of citizenship, and is submitted here on appeal on an agreed statement of facts, limited to excerpts from the pleadings', and it appearing from the record that the citizenship of Vincent, plaintiff, is in the complaint asserted to be in Indiana while the answer in denial asserts he is a citizen of Michigan, and it also appearing that there are no proofs, by affidavit or oral testimony, relating to the issue, and no finding thereon by the District Judge, and it also appearing that the oral statement of the appellant as to Vincent’s citizenship upon which appellee relies in support of the order is not preserved of record, so that we are unable to determine, whether the judge was right or wrong, it is hereby ordered that the dismissal be set aside and the case remanded to the District Court for a determination of the jurisdictional issue, either upon appropriate proofs, or upon concessions of counsel properly preserved, and with-an appropriate finding thereon as to plaintiff’s citizenship.

Reversed and remanded.