An order drawn upon a county treasurer by county officials in
favor of A or order unendorsed, and a like order in favor of A,
both assigned by A to B for a valuable consideration, constitute no
cause of action in B's favor on which B can maintain an action in a
circuit court of the United States on the ground of citizenship if
A could not maintain the action there on the same ground, and if,
in such action in B's favor, A's necessary qualification of
citizenship does not affirmatively appear in the record in this
Court, the judgment below will be reversed whether the question of
jurisdiction be made or not, and plaintiff in error adjudged to pay
costs in this Court.
This action was brought November 10, 1885, by the King Iron
Bridge and Manufacturing Company, a corporation of Ohio, against
Otoe County, in the State of Nebraska, to recover the amount of two
county warrants or orders, each signed by the chairman of the
county commissioners of the county, and countersigned by the county
clerk. One was dated October 9, 1878, and directed the "Treasurer
of Otoe County to pay to Z. King or order sixteen hundred and five
dollars, and charge to account of special bridge funds," and the
other dated January 9, 1879, directed the "Treasurer of Otoe County
to pay to Z. King sixteen hundred and five dollars, and charge to
account of special bridge fund." The first one being presented for
payment on the 23d of October, 1878, was endorsed by the treasurer,
"Presented, and not paid for want of funds." The other was
presented on the 15th of January, 1879, and received a like
endorsement. The petition states in respect of each warrant that it
had been, for a valuable consideration, "sold, transferred, and
delivered" by Z. King to the plaintiff, who sues as the holder and
owner thereof.
Judgment was asked for $3,210, with ten percent interest on
$1,605 thereof from October 23, 1878, and for $1,605, with like
interest from January 15, 1879.
Page 120 U. S. 226
The defense was the limitation of five years prescribed by the
local law for an action "upon a specialty, or any agreement,
contract, or promise in writing, or foreign judgment." The court
below overruled a demurrer to the answer and dismissed the
action.
MR. JUSTICE HARLAN, after stating the case as above reported,
delivered the opinion of the Court.
This case was argued upon the question of limitation. But we
have no occasion to consider that question, for it does not appear
that the circuit court had jurisdiction of the action. Unless the
contrary appears affirmatively from the record, the presumption
upon writ of error or appeal is that the court below was without
jurisdiction.
Robertson v. Cease, 97 U. S.
646;
Grace v. American Central Ins. Co.,
109 U. S. 283;
Boers v. Preston, 111 U. S. 252.
That the point as to jurisdiction was not made here by either party
is immaterial, because, as said in
Mansfield &c. Railway
Co. v. Swan, 111 U. S.
382,
"The rule, springing from the nature and limits of the judicial
power of the united states, is inflexible and without exception
which requires this Court of its own motion to deny its own
jurisdiction, and, in the exercise of its appellate power, that of
all other courts of the United States in all cases where such
jurisdiction does not affirmatively appear in the record on which,
in the exercise of that power, it is called to act. On every writ
of error or appeal, the first and fundamental question is that of
jurisdiction -- first of this Court and then of the court from
which the record comes."
See also Hancock v. Holbrook, 112
U. S. 231. The Act of March 3, 1875, ยง 1, excludes from
the cognizance of a circuit or district court of the United
States
"any suit founded on contract in favor of an assignee unless a
suit might
Page 120 U. S. 227
have been prosecuted in such court to recover thereon if no
assignment had been made, except in cases of promissory notes,
negotiable by the law merchant, and bills of exchange."
One of the warrants is payable to Z. King and the other to Z.
King or order. The latter is not endorsed by him in blank or to the
order of the plaintiff. Plainly, therefore, upon any view of the
statute, the plaintiff, as the holder or owner of the warrants,
could not maintain a suit in the court below unless King could have
sued in that court had he not sold the warrants. But it does not
appear that King could have maintained the suit. There is no
averment as to his citizenship, nor does his citizenship otherwise
appear from the record. We must therefore presume, on this writ of
error, that the circuit court was without jurisdiction.
It will be for the court below to determine whether an amendment
of the pleadings upon the point of jurisdiction will be proper.
The plaintiff in error must pay the costs in this Court.
Peper v. Fordyce, 119 U. S. 469'
Everhart v. Huntsville College, ante, 120 U. S. 223.
Reversed.
