When the pleadings in an action in a circuit court of the United
states fail to show averments of diverse citizenship necessary to
give the court jurisdiction, the fault cannot be cured by making
such an averment in a remittitur by the plaintiff of a portion of
the judgment.
While it is not necessary that the essential facts necessary to
give a circuit court jurisdiction on the ground of diverse
citizenship should be averred in the pleadings, they must appear in
such papers as properly constitute the record on which judgment is
entered, and not in averments which are improperly and
surreptitiously introduced into the record for the purpose of
healing a defect in this particular.
The cases on this subject reviewed.
This was a writ of error sued out under the Act of February 25,
1889, 25 St. 693, c. 236, allowing a writ of error in all cases
involving the jurisdiction of the circuit court.
The action was brought by the defendants in error against
Page 141 U. S. 122
Denny, one of the plaintiffs in error, to recover certain wines
purchased of the plaintiffs by one Momand through the alleged
fraudulent device of Denny, who subsequently seized such wines upon
an attachment of his own against Momand. The only averment of
citizenship, requisite to give jurisdiction, was contained in the
following allegation:
"1. That petitioners, who are hereinafter styled 'plaintiffs,'
are and were at the times of the accrual of the causes of action
hereinafter stated a mercantile firm, composed as aforesaid,
engaged in the wholesale wine and liquor business in the City and
County of Los Angeles, California, where both of said plaintiffs
also reside; that defendant is a resident citizen of Dallas County,
Texas, within the northern Judicial District of Texas."
The case went to trial upon this allegation, and a judgment was
recovered against Denny and the sureties upon his replevin bond for
$2,224.70, the value of the property, besides $238.29 damages, with
interest and costs. Motion was made for a new trial February 23,
1891, upon alleged errors in the instruction of the court and in
the verdict of the jury, and was denied. Upon the same day, a
motion was made in arrest of the judgment, which had already been
entered, upon the ground that there was no allegation in the
petition showing that plaintiffs and defendant were citizens of
different states and no allegation to show that the court had
jurisdiction. Upon the next day, the plaintiffs filed the following
remittitur:
"Now at this time come Pironi & Slatri, a firm and
co-partnership, composed of C. B. Pironi and F. Slatri, the
plaintiffs in the above numbered and entitled cause, each of whom
is now and was at the date of the institution of this suit a
citizen of the State of California and a resident to the City and
County of Los Angeles in said State of California, and show to the
court that they, on the 21st day of February, 1891, recovered a
judgment against the defendant, J. C. Denny, who was at the date of
the institution of this suit a citizen of the State of Texas, and a
resident of the City of Dallas in said State of Texas, within the
Northern Judicial District of Texas, for certain personal property
of the value of $2,224.70, and also
Page 141 U. S. 123
damages for its detention in the sum of $238.29, besides
interest and costs, and said plaintiffs now in open court remit the
sum of five dollars to and from the said sum of $238.29, the
damages awarded in said judgment aforesaid, and plaintiffs pray
that this remittitur may be noted on the docket and entered in the
minutes, and that execution may issue in due course for the balance
of said judgment, after deducting said sum of five dollars now here
remitted from the damages adjudged as aforesaid."
Upon the filing of this document, an order was made that
"said remittitur be noted on the docket, and filed herein as a
part of the record of this cause, and that the said sum of five
dollars be, and the same is hereby, remitted from the judgment of
$238.29, assessed and adjudged as damages in said original judgment
herein entered on February 21, 1891, and it is further ordered that
execution issue for the balance only of said original judgment
after deducting the said amount of five dollars so here
remitted."
An order was also made denying the motion in arrest of judgment,
and a bill of exceptions was settled setting forth the above
facts.
MR. JUSTICE BROWN, after stating the facts as above, delivered
the opinion of the Court.
The only averment of the plaintiffs' citizenship appearing in
the record prior to the remittitur is contained in the first
allegation of the petition, that
"the petitioners, who are hereinafter styled 'plaintiffs,' are
and were at the times of the accrual of the causes of action
hereinafter stated, a mercantile firm, composed as aforesaid,
engaged in the wholesale wine and liquor business in the city and
County of Los Angeles, California, where both of said plaintiffs
also reside."
That an averment of residence is not the equivalent of an
averment of citizenship, and is insufficient to give the circuit
court jurisdiction, has been settled in a multitude of cases in
this Court:
Page 141 U. S. 124
Parker v.
Overman, 18 How. 137;
Robertson v. Cease,
97 U. S. 646;
Everhart v. Huntsville College, 120 U.
S. 223;
Menard v. Goggan, 121 U.
S. 253, and in case of a defective averment in this
particular, the judgment will be reversed by this Court upon its
own motion, and the case remanded,
Peper v. Fordyce,
119 U. S. 469;
Everhart v. College, 120 U. S. 223;
Menard v. Goggan, 121 U. S. 253. A
case cannot be amended here so as to show jurisdiction, but the
court below, in its discretion, may allow it to be done where the
suit was instituted in the circuit court.
Continental Insurance
Company v. Rhoads, 119 U. S. 237;
Halsted v. Buster, 119 U. S. 341.
This judgment, then, depends for its validity wholly upon the
question whether the mere recital of the citizenship of the parties
in the remittitur is such an incorporation of the same into the
record as obviates the objection to the original petition and
supports the judgment. It has been repeatedly held that it was not
necessary for the averment to appear in the pleadings, but that the
statute was complied with if it appeared in any part of the record.
Thus, in
Railway Company v.
Ramsey, 22 Wall. 322, which was a case removed from
a state court, the averment of citizenship did not appear in the
pleadings, but the parties, by stipulation and agreement placed on
file and made part of the record, admitted that the cause was
brought into the circuit court by transfer from the state court in
accordance with the statutes in such case provided. By the same
stipulation it was made to appear that all the original files in
the cause had been destroyed by fire. The Court held that while
consent of parties cannot give the courts of the United States
jurisdiction, they may admit facts which show jurisdiction, and the
courts may act judicially upon such admission, and that it would be
presumed that the petition for removal stated facts sufficient to
entitle the party to have the transfer made. Said the Chief
Justice, speaking for the Court:
"As both the court and the parties accept the transfer, it
cannot for a moment be doubted that the files did then contain
conclusive evidence of the existence of the jurisdiction
facts."
In
Briges v. Sperry, 95 U. S. 401, the
bill showed no
Page 141 U. S. 125
jurisdiction in the circuit court; but as the proceedings in the
state court, which were held to be properly part of the record,
showed that the case was removed from the state court to the
federal court on account of the citizenship of the parties, the
jurisdiction was sustained. The same ruling was made in
Steamship Company v. Tugman, 106 U.S.
118. In
Bondurant v. Watson, 103 U.
S. 281, the record showed that the husband of the
original defendant, of whose will she was the executrix, was at the
time of his death and for many years before had been a citizen of
Mississippi, and the Court held that it necessary followed that the
defendant was a citizen of such state at the time of her husband's
death, which took place before the filing of the petition in the
case, and that as it also appeared that she was a citizen of the
same state at the time of the commencement of the suit against her,
the jurisdiction should be sustained.
While these cases settle the principle that it is not necessary
that the essential facts shall be averred in the pleadings, they
show that they must appear in such papers as properly constitute
the record upon which judgment is entered, and not in averments
which are improperly and surreptitiously introduced into the record
for the purpose of healing a defect in this particular. Thus, in
Robertson v. Cease, 97 U. S. 646, it
was claimed by counsel to be apparent, or to be fairly inferred
from certain documents or papers copied into the transcript, that
the plaintiff was at the time of the commencement of the action a
citizen of Illinois. Among these documents was a notice of an
application for a commission to examine witnesses, among whom was
the plaintiff, described as residing in the County of Mason, State
of Illinois, and there was a deposition of his which began as
follows: "My name is Henry Cease; residence, Mason county,
Illinois." Under the doctrine of the cases before cited, it was
contended that the citizenship of Cease was satisfactorily shown by
these documents, which it was insisted were a part of the record.
"But," said the Court,
"this position cannot be maintained. It involves a
misapprehension of our former decisions. When we declared that the
record, other than the pleadings, may be referred to in this Court
to
Page 141 U. S. 126
ascertain the citizenship of the parties, we alluded only to
such portions of the transcript as properly constituted the record
upon which we must base our final judgment, and not to papers which
have been improperly inserted in the transcript. Those relied upon
here to supply the absence of distinct averments in the pleadings
as to the citizenship of Cease clearly do not constitute any
legitimate part of the record."
In the case under consideration, the remittitur formed no proper
part of the judgment record, and the recital of citizenship formed
no proper part of the remittitur. Undoubtedly proceedings
subsequent to the judgment are admissible to show what action has
been taken upon such judgment, as for instance that it has been
vacated, stayed, amended, modified, or paid, that execution has
been issued upon it, or that a part of it has been remitted; but
such proceedings cannot be introduced to validate a judgment void
for the want of jurisdiction. Not only is the remittitur in this
case open to this objection, but it appears upon its face not to
have been filed in good faith, but for the sole purpose of
introducing the averment of citizenship; in other words, this
averment is the object, and the remittitur the incident.
Remittiturs are used where the judgment has been accidentally
entered for a larger amount than was due, or occasionally to
forestall an appeal,
Pacific Express Company v. Malin,
132 U. S. 531, but
never to give jurisdiction where it is not otherwise shown. As well
might it be contended that the difficulty could be surmounted by
filing an affidavit subsequent to judgment. In either case, it
would be impossible for the defendant to take issue upon it or to
submit it to the court or jury, as upon a plea in abatement.
The judgment of the court below must be reversed, and the
case remanded for further proceedings not inconsistent with this
opinion.
