Tinsley v. Hoot

53 F. 682, 3 C.C.A. 612, 1893 U.S. App. LEXIS 1380

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 9, 1893
• Docket: No. 80
• Status: Published

Opinion

PARDEE, Circuit Judge.

The record does not show the jurisdiction of the circuit court. The suit is one of trespass to try title to one third of a league of land in San Jacinto county, Tex.; and within the easiern district of Texas. On the trial in the circuit court, plaintiff asserted title to the land through a deed from the sole surviving heir of the patentee. Defendants deraigned title through a judgment obtained in the district court of the state for Walker county, Tex., in a proceeding in personam, with citation by publication. The jurisdiction of the circuit court, if existing at all, therefore depended upon the opposite parties being aliens and citizens of the United Pintes, or citizens of different states. The plaintiff’s original: petition makes no averment as to the citizenship of any of the -parties, but in the description of parties alleges as follows:

“Tlie petition of Thomas Tinsley, who resides in the state of New Tork, complaining of Joshua B, Hoot; A. B. Hoot, and J. M. Phillips, who reside in San Jacinto county; of Imogone Banton, who resides in McLennan county; of Juliet B. and her husband II. H. Bush, Cornelia Hamilton, Sallie E. Gibbs, AV. S. Gibbs, and the minor children of Sanford Gibbs, deceased, to wit, M. A. Gibbs, Tilomas G. Gibbs, Sallie S. Gibbs, J. P. Gibbs, and Luteola Gibbs, who reside in Walker county, and all in the state of Texas, whose given names, except those stated, are unknown to complainant, with respect represents,’’ etc.

Nowhere in the record do we find any averment as to the citizenship of any of the parties, except in an amendment to the original! petition, as follows:

“Now comes the phiinüff, and amends his original petition by leave, a.nd says that Joshua M. Hoot, who is a citizen of the state of Texas, and resides in San Jacinto county, within the eastern district of Texas, is a proper party defendant in tliis cause1, and is claiming,” etc.

The jurisdiction of the circuit court must appear affirmatively in the record. Where the jurisdiction of the circuit court does not appear in the record, the appellate court will, on its own motion, notice the defect, and make disposition accordingly. It is well settled that an averment of residence is not the equivalent of an averment of citizenship’ in the courts of the United States. Telephone Co. v. Robinson, 2 U. S. App. 148, 1 C. C. A. 91, and 48 Fed. Rep. 769, and cases there cited. The judgment of the circuit court must l)e reversed, and ihe cause remanded, with instructions to dismiss plaintiff’s petition for want of jurisdiction, unless, by proper amendment showing the citizenship of the parties the jurisdiction of the circuit court shall affirmatively appear, in which case the circuit court will thereafter proceed according to law; the plaintiff in error to pay all costs of this and the circuit court. And it is so ordered.