Errors assigned as to finding of citizenship of a party
dismissed from the suit at instance of appellant are not here for
review except as to the force and effect to be given to a decree
pro confesso against other defendants before dismissal of
the bill.
Under the Foraker Act of April 12, 1900, 31 Stat. 85, c. 191,
jurisdiction of the district court of the United States was that of
the district and circuit courts of the United States; the
additional jurisdiction conferred by the Act of March 2, 1901, 31
Stat. 953, c. 812, did not extend the jurisdiction so as to embrace
all controversies in which any litigant on either side is a citizen
of the United States or a subject of a foreign country.
Page 223 U. S. 377
The District Court of the United States for Porto Rico has not
jurisdiction of a cause in which the sole plaintiff is a citizen of
Porto Rico and any of the defendants are citizens of Porto Rico,
notwithstanding one or more of the defendants may be citizens of
the United States or of a foreign country.
By the Act of March 2, 1901, Congress did extend the
jurisdiction of the United States District Court for Porto Rico by
cutting down the necessary jurisdictional amount and dispensing
with diversity of state citizenship, by substituting United States
citizenship therefor.
The final decree following a
pro confesso order is only
such a decree as would be authorized by the state of the pleadings
when the order was entered.
If a bill is fatally defective, showing that the court had no
jurisdiction, it is error to allow a
pro confesso; the
order should be vacated, and the defaulting defendant allowed to
defend.
Where an amendment is allowed that changes the character of the
bill and creates a jurisdiction not theretofore existing, the court
should set aside a default and give time to defend.
A decree
nunc pro tunc presupposes a decree allowed or
ordered, but not entered through inadvertence of the court or a
decree under advisement when the death of a party occurs.
Mitchell v. Overman, 103 U. S. 62.
No attempt at revision having been made at any time, there is no
ground to enter a decree
nunc pro tunc in this case on any
known ground of equity procedure.
Gray v.
Brignardello, 1 Wall. 627.
3 P.R.F. 67 affirmed.
The appellant, asserting herself to be a citizen of the Island
of Porto Rico, filed this bill to foreclose a mortgage upon a
plantation on the island called "Carmelita." The defendants to the
bill were three in number, namely, Cuebas y Arredondo, alleged to
be a citizen of the United States, residing in Porto Rico,
Francisco Antongiorgi, described as a citizen of and residing in
Porto Rico, and El Banco Territorial y Agricola, alleged to be a
corporation organized under the laws of Spain and a citizen
thereof, doing business in the Island of Porto Rico, with its
principal place of business in the City of San Juan.
The averments as to the title and encumbrances upon
Page 223 U. S. 378
the said plantation, and the interests asserted by way of lien,
or mortgage, by the defendants Antongiorgi and El Blanco
Territorial, etc., hereafter referred to as the bank, are complex,
and for the purposes of this case, upon the question now for
decision, need not be stated otherwise than to say that the bill
alleged that they
"have or claim some interest in said mortgaged premises, or in
some part thereof, as purchasers, mortgagees, or otherwise, the
exact nature and extent of which interests are unknown to your
orator, if any at all they have, but the same are inferior and
subsequent to the lien of the mortgage of your orator and subject
thereto."
Aside from the usual prayer for a decree declaring and enforcing
the lien of the mortgage asserted by a sale, etc., the bill asked
that
"the defendants and all persons claiming under them subsequent
to the commencement of this suit, and all other persons, although
not parties to this suit, who have any liens or claims thereon by
or under any such subsequent judgment or decree, either as
purchaser, encumbrancer, or otherwise, may be barred and foreclosed
of all equity of redemption in the said premises, and that your
orator may have such other and further relief as the nature of the
case may require, and as to this court may seem meet and agreeable
to equity and good conscience."
The bill was filed April 6, 1904, in the District Court of the
United States for Porto Rico.
On July 11, 1904, the three named defendants, though duly
summoned to appear by a rule day named and make their defense, made
default, and the bill was on that day taken for confessed under
Equity Rule 19
et seq.
In March, 1905, the bank was permitted to file its answer, in
which it denied the equities of the bill and asserted its own
superior right under mortgages, judicial sale, and by estoppel.
In October, 1906, it was permitted to withdraw its answer and
file a plea to the jurisdiction. That plea was
Page 223 U. S. 379
in these words, omitting the formal parts and conclusion:
"That this Court ought not to further take cognizance of the
said bill of complaint, because this defendant says that, at the
time of the filing of the same, the complainant herein was and
still is a citizen of the Island of Porto Rico, and resident of the
same, and this defendant was and is a corporation organized and
doing business under and by virtue of the laws of said Island of
Porto Rico, and was and is a citizen of the same, and each and all
of the other defendants herein are citizens and residents of the
said Island of Porto Rico, and that therefore this is a suit by and
between citizens and residents of the said Island of Porto Rico, of
which this Court has no jurisdiction."
"That, as shown by the said bill of complaint, the jurisdiction
of this Court over and of this suit is sought to be maintained not
by reason of any federal question being involved herein, but solely
and only by reason of the alleged diverse citizenship of the
parties herein and hereto, and that, as shown by the allegation of
the said bill of complaint, the defendant is alleged to be a
citizen of Spain, and another of the defendants, to-wit, Felipe
Cuebas y Arredondo, is alleged to be a citizen of the United States
of America, and another of said defendants, to-wit, Francisco
Antongiorgi, is alleged to be a citizen of Porto Rico, and that
therefore it affirmatively appears by the allegations of the said
bill, if the same are true as therein alleged, that this is a case
of which this Court has not jurisdiction."
After first overruling this plea, for reasons set out in an
opinion (4 P.R.F. 120), a rehearing was allowed and the plea
sustained upon the ground that the bank was not a corporation of
Spain, but one existing under the laws of Porto Rico, and a citizen
of that island for jurisdictional purposes.
Prior to this action upon the plea of the bank, the date
Page 223 U. S. 380
not appearing, the complainant voluntarily dismissed her bill as
to Francisco Antongiorgi, whom the bill had averred to be a citizen
of Porto Rico.
The judgment on the plea of the bank, above set out, was that,
for lack of the requisite diversity of citizenship, the bill should
stand dismissed "unless, within five days from this date, the bill
can be amended so as to give the court jurisdiction."
Thereupon complainant entered an order, entitled: "Irene Cuebas
y Arredondo vs. Felipe Cuebas y Arredondo et al.," which is in
these words:
"Comes now the complainant above named, by her solicitors, F. L.
Cornwell and N. B. K. Pettingill, and, in pursuance of the
permission granted by the court in its order of the 7th day of
June, 1909, conditionally dismissing said bill of complaint, hereby
amend their said bill of complaint for the purpose of retaining
jurisdiction in this Court by dismissing the same as to said
defendant El Banco Territorial y Agricola."
"And in order to make said bill of complaint conform to such
dismissal, they hereby amend the same in the following particulars,
to-wit:"
"1. By striking from the same the last four lines of the
preliminary paragraph of said bill in which the parties thereto are
stated."
"2. By striking out paragraph number X of said bill of
complaint."
"3. By striking out the name of said El Banco Territorial y
Agricola wherever the same appears in the prayer for relief and in
the prayer for process contained in said bill."
"And said bill of complaint having been heretofore amended so as
to dismiss one Francisco Antongiorgi as a defendant therein, and
being now amended so as to dismiss the same as to said El Banco
Territorial y Agricola, complainant hereby elects to proceed with
the same as against the defendant Felipe Cuebas as sole defendant.
"
Page 223 U. S. 381
Thereupon the complainant moved the court for a final decree
against the sole defendant Felipe Cuebas, "as of a date prior to
the death of Felipe Cuebas, so as to avoid the necessity for
reviving as against his succession," etc. This the court denied,
and dismissed the bill.
From this decree an appeal has been prosecuted.
Page 223 U. S. 385
MR. JUSTICE LURTON, after stating the facts as above, delivered
the opinion of the Court.
The bank is not a party to this appeal. The appellant has
elected to dismiss her bill, both as to it and the other Porto
Rican defendant, Antongiorgi, for the express purpose of creating
jurisdiction of a suit between complainant, a citizen of the Island
of Porto Rico, and the remaining original defendant, Felipe Cuebas,
a citizen of the United States. Her bill, as amended, contains no
reference to the bank, or even of its existence. It was the bill,
as thus amended, which was dismissed by the court. We mention this
because two of the errors assigned and argued in the brief of
counsel for appellant relate to the action of the court, first in
holding that the bank was in law a citizen of Porto Rico, and
second in holding that, that being so, the jurisdiction of the
court to maintain the suit, with citizens of Porto Rico on both
sides of the case, would be defeated. The action of the court in
respect to the matter first mentioned is not here for review, and
the other only insofar as it may become necessary to deal with it
for the purpose of determining the force and effect to be given to
the decree
pro confesso against Felipe Cuebas.
It was not error in the situation of this case to deny a final
decree against the succession of Felipe Cuebas upon the foundation
of the
pro confesso order made on a rule day five years
theretofore. When that
pro confesso was
Page 223 U. S. 386
taken against Cuebas, the suit was one of which the district
court had no cognizance. The sole complainant was a citizen of
Porto Rico, and Cuebas was a citizen of the United States, and
therefore subject to be sued in that court by the complainant, if
the citizenship of the other persons on the same side was such as
not to defeat jurisdiction. But that was not the case. One of them,
Francisco Antongiorgi, was alleged in the bill to be a citizen of
the Island of Porto Rico. The other defendant, the bank, was
averred to be a corporation organized under the laws of Spain, and
a citizen thereof. But later, as we have already stated, the bank's
plea that it was a corporation under the laws of Porto Rico and a
citizen of Porto Rico was sustained. The case was, then, one which,
upon the face of the bill, showed that one of the defendants had a
citizenship common with that of the complainant, and later it
turned out that a second had a like citizenship.
It is not and cannot be claimed that the complainant's bill
asserted any right, title, or claim arising under the laws or
Constitution of the United States. If, therefore, the district
court had jurisdiction, it must depend upon diversity of
citizenship alone.
It is claimed that the fact that one of the three defendants was
a citizen of the United States conferred jurisdiction, although the
other two were Porto Ricans, with a citizenship identical with that
of the complainant. That this would not have been so under the
Foraker Act of 1900 is conceded. That act gave to the district
court for Porto Rico the jurisdiction of the United States district
courts, and added to that the jurisdiction of cases cognizable in
circuit courts of the United States. The contention is that this
extraordinary stretch of jurisdiction is conferred by the third
section of the Act of March 2, 1901, 31 Stat. 953, c. 812. That
section reads as follows:
Page 223 U. S. 387
"That the jurisdiction of the District Court of the United
States for Porto Rico in civil cases shall, in addition to that
conferred by the Act of April twelfth, nineteen hundred, extend to
and embrace controversies where the parties, or either of them, are
citizens of the United States, or citizens or subjects of a foreign
state or states, wherein the matter in dispute exceeds, exclusive
of interest or costs, the sum or value of one thousand
dollars."
Shortly stated, the construction placed upon this section is
that the word "parties" is not used collectively, meaning all of
the litigants on the one side or the other, but is intended as if
the word "litigants" had been used, and that the words "or either
of them" mean "any of them," and that the jurisdiction conferred
embraces all controversies in which any litigant on either side is
a citizen of the United States or a subject of a foreign
country.
The construction contended for is out of accord with that placed
upon the act in
Vallecillo Mandry v. Bertran, 2 P.R.F. 46
-- a construction constantly adhered to by the court below since
1906. It is also a construction out of harmony with a long line of
decisions of this Court construing the jurisdictional clauses in
the various statutes dealing with the question of jurisdiction
dependent upon diversity of citizenship. The first of the decisions
referred to involved the meaning of the clause in the judiciary Act
of 1789, conferring jurisdiction over controversies "where an alien
is a party, or the suit is between a citizen of a state where the
suit is brought and a citizen of another state." The question arose
in
Strawbridge v.
Curtiss, 3 Cranch 267, whether it was essential to
jurisdiction that all of the parties on one side should have a
citizenship different from that of all of the parties on the other.
In that case, the complainants were citizens of Massachusetts and
some of the defendants were citizens of the same state. But one of
the defendants was a citizen
Page 223 U. S. 388
of Vermont, and this fact was claimed to give jurisdiction. To
this, the Court, by Chief Justice Marshall, said:
"The Court understands these expressions to mean that each
distinct interest should be represented by persons all of whom are
entitled to sue or may be sued in the federal courts. That is, that
where the interest is joint, each of the persons concerned in that
interest must be competent to sue, or liable to be sued, in those
courts."
This construction of that clause and of like words in later
statutes, concerning jurisdiction dependent upon diversity of
citizenship has been followed in many cases, among them being
Coal Co. v.
Blatchford, 11 Wall. 172, and
Smith v.
Lyon, 133 U. S. 315. In
the case first referred to, Mr. Justice Field stated the matter in
words quite as applicable here, by saying:
"If there are several co-plaintiffs, the intention of the act is
that each plaintiff must be competent to sue, and if there are
several codefendants, each defendant must be liable to be sued, or
the jurisdiction cannot be entertained."
In view of these decisions, we should be slow to conclude that
Congress intended any other rule as to the arrangement of the
parties where diversity of citizenship is the basis of jurisdiction
than that laid down in construing like statutes upon the same
subject. The contention that from the evident intention of Congress
to enlarge the jurisdiction of the court we should infer an intent
to confer jurisdiction to the extent claimed is without merit.
Congress, in very plain words, did extend the jurisdiction, first
by cutting down the necessary jurisdiction amount to $1,000, and
second by dispensing with diversity of state citizenship. United
States citizenship is substituted for diverse state
citizenship.
We therefore conclude that the court had no jurisdiction of this
cause when the
pro confesso order was entered against
Felipe Cuebas.
Page 223 U. S. 389
The final decree following a
pro confesso order is only
such a decree as would be authorized by the state of the pleadings
when the order was entered.
Frow v. De La
Vega, 15 Wall. 552; Daniel's Chancery Pl. &
Pr., 5th ed. pp. 525-528, and notes;
Simmonds v. Palles, 2
Jones & La Touche's 489;
Hardwick v. Bassett, 25 Mich.
149;
McDonald v. Mobile Life Ins. Co., 6 Ala. 468. If the
bill was fatally defective upon its face, showing that the court
had no jurisdiction, it was error to allow a
pro confesso,
and upon the court's attention's being called to it, it should have
vacated the order and allowed the defaulting defendant to defend.
Nelson v. Eaton, 66 F. 376;
Blythe v. Hinckley,
84 F. 228, 244;
Eldred v. American Palace Car Co., 103 F.
209.
That the bill was subsequently amended so as to confer
jurisdiction against Cuebas as a sole defendant by dismissing the
bill against the other two defendants and striking out the prayer
of the bill that any and every claim, interest, or encumbrance be
forever barred and cut off did not justify a decree based upon the
order
pro confesso made prior thereto. Upon such
amendment's being made, so completely changing the character of the
bill, creating a jurisdiction which had not theretofore existed,
the court should have set aside the default and given time to
defend.
But the allowance of a final decree
nunc pro tunc would
have been still more inadmissible. Cuebas had been then dead for,
apparently, some years. There had been no revivor. If there had
been, his representatives would doubtless have moved to vacate the
pro confesso decree upon the ground suggested, and it
would have been error to have denied that motion. The motion to
enter a decree as of a day before his death would, if allowed, have
been fruitless, for it would bear a date antecedent to the
acquirement of jurisdiction, and therefore erroneous, if of any
validity.
Page 223 U. S. 390
But no decree
nunc pro tunc was admissible. Such a
decree presupposes a decree allowed, or ordered, but not entered,
through inadvertence of the court, or a decree in a cause which is
under advisement when the death of a party occurs.
Mitchell v.
Overman, 103 U. S. 62. There
is no claim that a final decree in pursuance of the allegations of
the bill had ever been directed, and, through inadvertence of
either court or counsel, omitted from entry. There was therefore no
authority for a decree
nunc pro tunc upon any known ground
of equity procedure.
Gray v.
Brignardello, 1 Wall. 627.
No effort to revive the cause against the succession of Cuebas
was at any time made. The complainant stood upon her right to a
final decree
nunc pro tunc. When this was denied, she
still made no effort to revive the cause, though Cuebas had been
dead a long time. It was not error in such circumstances to dismiss
the bill.
Decree affirmed.
