Wilson v. Giberson

124 F. 701, 1903 U.S. App. LEXIS 5024

• Court: U.S. Circuit Court for the District of Western Arkansas
• Decided: March 25, 1903
• Status: Published

Opinion

ROGERS, District Judge.

This case purports to have been brought here by the defendant on removal from the Marion circuit court sitting in chancery. It is essential to the jurisdiction of this court that all facts which are necessary to the exercise of jurisdiction affirmatively appear on the face of the petition for removal or the accompanying record. It does not appear in this case that this suit was ever filed in the Marion circuit court. It may be inferred from facts which appear in the record (and to which I need not refer) that the case was hied in the Marion circuit court, but this court cannot acquire jurisdiction on removal by inferences. As stated, the facts giving jurisdiction must appear affirmatively, and not inferentially. If this were the only defect in the record, certiorari might- be awarded, directed to the clerk of the Marion circuit court, to compel him to perfect the record; time might be granted to the defendant to procure a perfect transcript of the record and hie the same. The certiorari, however, in this case could be of no service, because it does not appear that the complainants and the defendant were citizens of different states either at the time the suit was brought or at the time the petition for removal was hied. Both facts should'appear affirmatively in order to give this court jurisdiction. Freeman v. Butler (C. C.) 39 Fed. 1; Camprelle v. Balbach (C. C.) 46 Fed. 81. Any number of cases upon this proposition might be collated. It is unnecessary, however, to do so, because this practice .is established, and the case must be remanded to the Marion circuit court for want of jurisdiction in this court.