A declaration that plaintiff is a resident of a state of the
Union and a citizen of a foreign country under a monarchical form
of government is sufficient to show the meaning of the pleader and
the nationality of the plaintiff, and there is no merit in an
objection to the jurisdiction of the circuit court, diverse
citizenship existing, because plaintiff was not a citizen, but a
subject of the foreign power.
While under the Judiciary Act of 1891, in case of direct review
on question of jurisdiction, when the record does not otherwise
show how the question was raised, the certificate of the Circuit
Court may be considered for the purpose of supplying such
deficiency, when the elements necessary to decide the question are
in the record, the better practice, in every case of direct review
on question of jurisdiction, is to make apparent on the record by a
bill of exceptions or other appropriate mode the fact that the
question of jurisdiction was raised and passed on, and also the
elements upon which the question was decided.
The facts are stated in the opinion.
Page 203 U. S. 280
MR. JUSTICE WHITE delivered the opinion of the Court.
A motion has been made to dismiss the writ of error, among
others, on the ground of the absence of a bill of exceptions, and
the character of the order appealed from. We pass to the merits of
the case without stopping to review the grounds of the motion, as
we think they will be substantially disposed of by the views which
we shall hereafter express.
By this writ of error, the C. H. Nichols Lumber Company seeks
the reversal of a judgment obtained by Charles Franson in the
Circuit Court of the United States for the Western District of
Washington. Considering the record alone, and putting out of view
for the moment the effect of statements contained in a certificate
made by the court below on the allowance of the writ of error, the
case is this: the action was brought to recover for personal
injuries alleged to have been sustained while in the employ of the
defendant. The jurisdiction of the court below was invoked solely
upon the ground of diversity of citizenship, it being alleged in
the first paragraph of the complaint that the defendant was a
corporation organized under the laws of the State of Washington and
doing business in the State of Washington and that the plaintiff
was at the time of the filing of the complaint, and had been for
more than a year prior thereto, "a resident of Washington and a
citizen of Sweden." Admitting its incorporation, and that it was
doing business in the State of Washington, the defendant, by its
answer, specifically denied each and every other allegation of the
first as well as other specified paragraphs of the complaint.
The cause was tried to a jury, and, after verdict and remittitur
of a portion thereof, a judgment was entered in favor of plaintiff.
The record does not contain a bill of exceptions, and in the brief
of counsel for plaintiff in error, it is stated that none was
prepared.
This writ of error, upon the ground solely of a want of
jurisdiction in the trial court, was prayed and allowed, and a
Page 203 U. S. 281
formal certificate was made by the judge, reciting to the time
when and how the question of jurisdiction was raised and decided,
accompanied with a statement of the pleadings and of the court's
impression of certain testimony given at the trial by the
plaintiff, deemed by the court pertinent to the elucidation of the
question of jurisdiction. The certificate concludes with the
statement of enumerated "questions of jurisdiction," which the
court was of opinion arose for decision, all of them being based
upon the overruling by the court of a motion to dismiss the action
for want of jurisdiction, which motion, it is recited in the
certificate, was made between verdict and judgment. And the only
ground here assigned as error is predicated upon the action of the
court in denying such motion to dismiss.
As the circuit court was without power to make a certificate
containing a statement of facts as the basis for legal propositions
upon which it desired the guidance of this Court,
Mexican
Central Ry. Co. v. Eckman, 187 U. S. 432;
United States v. Rider, 163 U. S. 132, it
follows, speaking in a general sense, that our right to review on a
direct proceeding concerning the jurisdiction of that court must
depend upon the record, and not upon the mere statement of facts
made in the certificate prepared by the trial court. Applying this
general rule, as it nowhere appears from the record that the issue
as to jurisdiction presented by the motion to dismiss, the
overruling of which is the sole ground for reversal relied upon in
the assignment of error, was made or passed upon by the court, we
should be constrained to dismiss this writ of error on the ground
that the record did not disclose the presence in the case of the
question of jurisdiction which is made the basis of the assignment
of error. As, however, under the Judiciary Act of 1891, on a direct
review of a question of jurisdiction, the trial judge is authorized
to certify as to the existence of such question, we think we may
look at his certificate for the purpose of ascertaining when and
how the question of jurisdiction was raised, although, for the
purpose of deciding the question
Page 203 U. S. 282
shown to have been thus raised, we may not resort to the
statements in the certificate for the purpose of supplying elements
of decision which we could not properly consider in an action at
law without a bill of exceptions. We have said that we may resort
to the certificate, in the absence of a proper showing on the
record as to when and how the question of jurisdiction was raised
and decided, for the limited purpose stated, because the power to
do so is implied in a previous decision of the court,
North
American &c. Co. v. Morrison, 178 U.
S. 262, and because of the general rule that it would be
our duty, without action of the trial court or of the parties, to
look at the record to determine whether or not the court below had
jurisdiction of the action,
Thomas v. Ohio State University
Trustees, 195 U. S. 211.
It is apparent under the rule we have stated that, whilst we must
consider the record for the purpose of determining the question of
jurisdiction which the certificate shows adequately to have been
raised, we may not consider, in passing upon that question, in the
absence of a bill of exceptions, the extraneous matter, such as the
testimony of the plaintiff, etc., which forms no part of the
record. The question, therefore, for decision under these
circumstances is merely this: does the record show jurisdiction in
the court below? This solely depends upon the contention that the
allegation in the complaint of the alienage of the plaintiff was
insufficient.
The allegation was as follows: "That the plaintiff now is, and
for more than one year last past has been, a resident of Washington
and a citizen of Sweden." In brief, the argument is that, at the
time the action was brought, Sweden was under a monarchical form of
government, being, jointly with Norway, under the rule of the King
of Sweden and Norway, and if the plaintiff owed allegiance to the
government of Sweden, he was not a "citizen," but a "subject," of
that country. It is not, however, disputed that, although, at the
time of the bringing of this action, Sweden, a limited monarchy,
was united to Norway under the same king, and the two countries
were
Page 203 U. S. 283
bound to assist each other in the event of war, they were
otherwise free and independent. 9 Century Dictionary and
Encyclopedia 969. The allegation that the plaintiff was a resident
of the State of Washington clearly shows that the designation
"citizen of Sweden" was not employed to indicate mere residence,
and could only have been intended as a statement of the nationality
of the plaintiff -- the country to which he bore allegiance.
Whether, as contended for the defendant in error, the plaintiff, if
he owed allegiance to the ruler of the Kingdom of Sweden, was
properly described, in the strictest technical sense, as a citizen
instead of as a subject of Sweden we need not consider. The meaning
of the pleader being evident, the objection is without merit.
Hennessy v. Richardson Drug Co., 189 U. S.
25.
Whilst we hold that, in a case of direct review under the
Judiciary Act of 1891, when the record does not otherwise show when
and how the question of jurisdiction was raised, the certificate of
the circuit court may be considered for the purpose of supplying
such deficiency when the elements necessary to decide the question
are in the record, we deem it the better practice in every case of
direct review on a question of jurisdiction to make apparent on the
record, by a bill of exceptions or other appropriate mode, the fact
that the question of jurisdiction was raised and passed upon and
the elements upon which the decision of the question was based.
Judgment affirmed.