A petition filed in the District Court of Louisiana averred that
the plaintiff, Richard Raynal Keene, is a citizen of the State of
Maryland and that James Brown, the defendant, is a resident of the
State of Louisiana, holding his fixed and permanent domicile in the
Parish of St. Charles.
The decisions of this Court require that the averment of
jurisdiction shall be positive and that the declaration shall state
expressly the fact on which jurisdiction depends. It is not
sufficient that jurisdiction may be inferred argumentatively from
its averments.
A citizen of the United States may become a citizen of that
state in which he has a fixed and permanent domicile, but the
petition does not aver that the plaintiff is a citizen of the
United States.
The Constitution extends the judicial power to "controversies
between citizens of different states," and the Judicial Act gives
jurisdiction "in suits between a citizen of the state where the
suit is brought and a citizen of another state."
The cases of
Bingham v.
Cabot, 3 Dall. 382, 1 Cond. 170;
Abercrombie v.
Dupuis, 1 Cranch 343 [omitted];
Wood v.
Wagnon, 2 Cranch 9; 1 Cond. 335;
Capron v.
Vanorden, 2 Cranch 126, cited.
In the district court, the defendant in error, Richard R. Keene,
filed a petition, in which he stated himself to be a citizen of the
State of Maryland, against James Brown, a citizen or resident of
the State of Louisiana, holding his fixed and permanent domicile in
the Parish of St. Charles in the district aforesaid, claiming
damages for an alleged nonperformance of a contract relating to the
conveyance of a lot of ground, part of the batture at New
Orleans.
To this petition Mr. Brown filed an answer by his attorney,
Isaac T. Preston, Esq., in which he objects to the jurisdiction of
the district court on the ground that the plaintiff as well as the
respondent is a citizen of the State of Louisiana. The answer then
proceeds to deny all the material allegations in the petition.
The district court made a decree in favor of the petitioner,
from which the respondent prosecuted a writ of error to this
Court.
Page 33 U. S. 114
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
Page 33 U. S. 115
The first error assigned in the proceedings is that the
petition, which, in the practice of Louisiana, is substituted for a
declaration, does not show with sufficient certainty that the
parties were with the jurisdiction of the Court. If this objection
be well founded, it is undoubtedly fatal.
The petition avers that the plaintiff, Richard Raynal Keene, is
a citizen of the State of Maryland and that James Brown, the
defendant, is a citizen or resident of the State of Louisiana,
holding his fixed and permanent domicile in the Parish of St.
Charles. The petition, then, does not aver positively that the
defendant is a citizen of the State of Louisiana, but in the
alternative, that he is a citizen or a resident. Consistently with
this averment, he may be either.
The additional words of description "holding his fixed and
permanent domicile in the Parish of St. Charles" do not aid this
defective description. A citizen of the United States may become a
citizen of that state in which he has a fixed and permanent
domicile, but the petition does not aver that the plaintiff is a
citizen of the United States. The question is whether the
jurisdiction of the court is sufficiently shown by these
averments.
The Constitution extends the judicial power to "controversies
between citizens of different states," and the Judicial Act gives
jurisdiction, "in suits between a citizen of the state where the
suit is brought and a citizen of another state."
The decisions of this Court require that the averment of
jurisdiction shall be positive and that the declaration shall state
expressly the fact on which jurisdiction depends. It is not
sufficient that jurisdiction may be inferred argumentatively from
its averments.
In
Bingham v.
Cabot, 3 Dall. 382, 1 Cond. 170, the Court held
clearly that it was necessary to set forth the citizenship (or
alienage, when a foreigner was concerned) of the respective parties
in order to bring the case within the jurisdiction of the Court,
and that the record was in that respect defective.
In
Abercrombie v. Dupuis, 1 Cranch 343, the plaintiffs
below aver "that they do severally reside without
Page 33 U. S. 116
the limits of the District of Georgia, to-wit, in the State of
Kentucky." The defendant is called "Charles Abercrombie, of the
District of Georgia, aforesaid." The judgment in favor of the
plaintiff below was reversed on the authority of the case of
Bingham v. Cabot.
In
Wood v. Wagnon, 2
Cranch 9, the judgment in favor of the plaintiff below was reversed
because his petition did not show the jurisdiction of the Court. It
stated the plaintiff to be a citizen of the State of Pennsylvania
and James Wood, the defendant, to be "of Georgia, aforesaid."
Capron v.
Vanorden, 2 Cranch 126, was reversed, because the
declaration did not state the citizenship or alienage of the
plaintiff in the circuit court.
The same principle has been constantly recognized in this
Court.
The answer of James Brown asserts that both plaintiff and
defendant are citizens of the State of Louisiana.
Without indicating any opinion on the question whether any
admission in the plea can cure an insufficient allegation of
jurisdiction in the declaration, we are all of opinion that this
answer does not cure the defect of the petition. If the averment of
the answer may be looked into, the whole averment must be taken
together. It is that both plaintiff and defendant are citizens of
Louisiana.
The decree of the court for the District of Louisiana is to
be
Reversed, that court not having jurisdiction, and the appeal
to be dismissed.
The cross-appeal,
Keene v. Brown, is to be
Dismissed, the Court having no jurisdiction.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of Louisiana and was argued by counsel, on consideration
whereof it is the opinion of this Court that the said district
court could not entertain jurisdiction of this cause, and that
consequently this Court has not jurisdiction in this cause but for
the purpose of reversing the judgment of the said district court
entertaining said jurisdiction, whereupon it is ordered and
adjudged by this Court that the judgment of
Page 33 U. S. 117
the said district court be and the same is hereby reversed, and
that this writ of error be and the same is hereby dismissed for the
want of jurisdiction. All of which is hereby ordered to be
certified to the said district court under the seal of this
Court.
