McMicken and Ficklin were in partnership, as merchants in the
State of Louisiana, and at the dissolution of the connection,
Ficklin agreed to purchase the half of the stock belonging to
McMicken, and after the partnership was dissolved gave him, in
payment for the same, a promissory note, payable, after its date to
the order of McMicken and Ficklin, which was executed by Ficklin,
Jedediah Smith, and Amos Webb, by which they promised, jointly and
severally, to pay the amount of the note. Although the note was
made payable to the order of McMicken and Ficklin, the latter was
in no wise interested in it as the payee
thereof. McMicken is a citizen of Ohio, and the drawers of the
note were citizens of the State of Louisiana. Amos Webb resided in
the Western District of Louisiana, but when the process in this
suit was served upon him, he was in
New Orleans, in the Eastern District. The defendant, Webb,
denied the jurisdiction of the District Court of the United States
for the Eastern District of Louisiana, alleging that he was a
citizen of the Western District. The defendants pleaded in
abatement and to the jurisdiction that the suit should have been
brought in the name of both the payees, and at the time it was
given, Ficklin was a citizen of Louisiana; this suit could not,
therefore, be brought in the district court of the United
States.
The residence of a party in another district of a state than
that in which the suit is brought in a court of the United States
does not exempt him from the jurisdiction of the court. The
division of a state into two or more districts, cannot affect the
jurisdiction of the court on account of citizenship. If a party is
found in the district in which he is sued, the case is out of the
prohibition of the Judiciary Act, which declares that
"No civil suit shall be brought in the courts of the United
States against a defendant by any original process in any other
district than that whereof he is an inhabitant or in which he shall
be found at the time of serving the writ."
The objection to the jurisdiction of the court on the ground
that the note was given to Ficklin and McMicken, and as Ficklin was
a citizen of Louisiana, the suit is interdicted by the prohibition
of the Judiciary Act, which declares that the courts of the United
States shall not have cognizance of a suit in favor of an assignee
of a chose in action unless a suit could have been prosecuted in
said court for the same if no assignment had been made, except in
cases of foreign bills of exchange, cannot be sustained. Ficklin
never had any interest as payee in the note. Although the note had
been given in the names of both persons, it was for the sole and
individual benefit of McMicken, and there was no interest which
Ficklin could assign.
The plaintiff in error filed his petition in the court below
averring that he was a citizen of and resident of the State of
Ohio, claiming
Page 36 U. S. 26
that the defendant, Amos Webb, who was also averred to be a
citizen and resident of the State of Louisiana, with Mary Ann
Smith, in her own capacity, and also as tutrix to Catharine Smith
and Sarah Smith, minor children and heirs of Jedediah Smith, who
was deceased and whom the said Mary Ann, as his widow, survived,
having since his death intermarried with Ira Smith, who was
therefore the tutor of said children, all of whom also were
citizens of and resident in the State of Louisiana, were jointly
and severally indebted to the plaintiff in the sum of $4,866.93
1/2, besides interest and costs. The plaintiff averred that said
indebtedness depended upon the following facts:
In 1815, the petitioner, the plaintiff, and one James H.
Ficklin, formed a co-partnership, and did business in the Parish of
Feliciana, in the State of Louisiana, under the name of McMicken
& Ficklin; that on or about 8 September, 1817, the partnership
was dissolved by mutual consent and the stock of merchandise then
on hand the said Ficklin agreed to take to his own account and to
pay for one-half of the same to the petitioner at the original cost
with the addition of five percentum, to conclude which agreement,
the said Ficklin thereupon executed the note of which the following
is a copy:
"$4,866.93 1/2 St. Francisville, Sept. 20, 1817"
"On 1 March 1819, we or either of us promise to pay, jointly or
separately, unto McMicken & Ficklin or order four thousand
eight hundred and sixty six dollars, ninety-three and one-half
cents, being for value received, with ten percent interest, after
due until paid."
"JAMES H. FICKLIN"
"JED. SMITH"
"AMOS WEBB"
The petitioner then averred that the note was made payable to
McMicken & Ficklin; that it was in fact and intended so to be
for his (petitioner's) portion of said partnership property, the
same having been made, after said firm had been dissolved, the
joint name being used merely for the petitioner's sole benefit, the
said Ficklin being in no wise a party thereto, except as one of the
obligors. The petitioner further averred that said Mary Ann Smith
and her two said minor children (Catharine and Sarah) owned and
possessed
Page 36 U. S. 27
all the property and estate of said Jedediah Smith; the said
Catharine, in right of her community, and the said children as
heirs, and by reason of which they had become obligated,
in
solido to pay to the petitioner the amount of the note
aforesaid. A citation was prayed for in the usual form.
Service was legally made, and on 11 February 1835, Webb, one of
the defendants, appeared by his attorney and filed three pleas to
the jurisdiction of the court. The other defendants, Mary Ann Smith
and her children (Catharine and Sarah), appeared on the same day by
attorney and filed two pleas to the jurisdiction. The pleas by all
the defendants, with the exception of the first, were the same, and
they presented the same questions for consideration.
The first plea by Webb was
"That while he admits he is a citizen of the State of Louisiana
and that he was in New Orleans when the citation was served, he
avers that he resides in the Parish of St. Landry, in the Western
District of said Louisiana, wherefore he prays judgment and whether
the court will take further cognizance of the cause, as regards
him, or that the suit may be transferred to said Western District
of Louisiana, at the cost of the petitioner."
The second plea, which was common to all the defendants, averred
that as the note stated in the petition was made payable to
McMicken & Ficklin -- that as the petitioner could only bring
suit thereon by virtue of some assignment thereof, and protesting
that there was no such assignment, it did not appear by averment in
the petition that said McMicken & Ficklin, comprising the
payees of said note, could have prosecuted their suit against the
makers thereof in this Court. To these statements was added the
general prayer that the court will not take jurisdiction. The third
plea averred that it did not appear by the petition that the
payees, at the time said note was made, could have prosecuted, or
that the makers could have been prosecuted, it in the district
court. Several other pleas appeared in the record, but they
presented matters in bar, and as they were not considered by the
court below, they are not stated.
In December, 1835, the cause came on for hearing, and the
judgment of the court is thus recorded:
"The court, having maturely considered the plea to the
jurisdiction made in this case, now orders that the same be
sustained and that the plaintiff's petition be dismissed at his
costs. "
Page 36 U. S. 28
The plaintiff prosecuted a writ of error to this Court.
Page 36 U. S. 36
THOMPSON, Justice, delivered the opinion of the Court:
This case comes before this Court on a writ of error from the
District Court of the United States in and for the Eastern District
of the State of Louisiana. The suit in the court below was
commenced by petition, in which the cause of action is set out,
informally but substantially as follows:
That the defendants are jointly and severally indebted to the
plaintiff
Page 36 U. S. 37
in the sum of $4,866.93, besides interest and costs; for this,
to-wit, that some time in the year 1815, the petitioner and one
James H. Ficklin formed a co-partnership and did business in the
Parish of Feliciana in the State of Louisiana under the name and
firm of McMicken & Ficklin; that on or about 8 September 1817,
said partnership was dissolved by mutual consent. That at the time
of such dissolution there was a quantity or stock of goods on hand,
which Ficklin took and purchased at cost, with five percent
addition, and for the payment of one-half of said stock of goods he
gave to the petitioner a promissory note, dated 20 September 1817
and payable on 1 March 1819, to the order of McMicken &
Ficklin, for the sum of $4,866.93, which note was executed by said
Ficklin, Jedediah Smith (by the name of Jed. Smith), and Amos Webb
by which they promised jointly and severally to pay the aforesaid
sum according to the terms of said note, a copy of which is annexed
to the petition. The petition avers that the note was made and
dated subsequent to the dissolution of the partnership, and
although made payable to McMicken & Ficklin, it was made for
the sole benefit of the petitioner, McMicken, and that Ficklin was
in no wise interested therein except as one of the obligors. The
petition then sets out the death of Jedediah Smith and how the
other defendants become bound to pay the note. It also contains an
averment that the petitioner is a citizen of the State of Ohio and
that the defendants are citizens of the State of Louisiana.
To this petition several pleas to the jurisdiction of the court
are interposed. The defendant, Webb, in one of his pleas, admits
that he is a citizen of Louisiana and that he was in New Orleans
when the petition and citation were served upon him, but avers that
he resides in the Parish of St. Landry in the Western District of
Louisiana, and denies the jurisdiction of the court on this ground.
The second plea in abatement is founded on the fact, which is set
out in the petition, that the note in question is made payable to
McMicken & Ficklin and the suit is in the name of McMicken
alone, without showing any assignment by Ficklin or that at the
time of making said note, McMicken & Ficklin could have
prosecuted a suit upon it in this Court. The third plea alleges a
want of jurisdiction in the court because the petition does not
allege that at the time of assigning said note, the payees might
have prosecuted the makers in this Court.
Page 36 U. S. 38
The other defendants also interposed pleas to the jurisdiction
of the court upon the grounds substantially as set forth in the
last two pleas of Amos Webb. The court below sustained these pleas
to the jurisdiction of the court and dismissed the petition.
This petition, although informal in many respects, must be
considered as the commencement of a suit at law according to the
course of proceedings in the courts of Louisiana, and is properly
brought up here by writ of error. The object of the petition is
simply to set forth the cause of action, and praying that the
defendants may be cited in court to answer to the demand set up
against them, and all that is required in such petition, according
to the practice in Louisiana, is that it should contain a clear and
concise statement of the object of the demand or the cause of
action upon which it is founded.
The question presented by the first plea to the jurisdiction of
the court is whether Webb, a citizen of the State of Louisiana who
resided in the Western District of that state, could be sued by a
plaintiff, who was a citizen of the State of Ohio, in the District
Court of the Eastern District of the State of Louisiana. The
residence of Webb being in the Western District of Louisiana could
not affect the jurisdiction of the court. The plea admits that he
was a citizen of Louisiana, and the act of Congress gives
jurisdiction where the suit is between a citizen of the state where
the suit is brought and a citizen of another state, and the
division of a state into two or more districts cannot affect the
jurisdiction of the court on account of citizenship. This plea
admits that the petition and citation were served upon him in New
Orleans, which takes the case out of the prohibition in the
Judiciary Act that no civil suit shall be brought in the courts of
the United States against an inhabitant of the United States by any
original process in any other district than that whereof he is an
inhabitant or in which he shall be found at the time of serving the
writ.
The second plea to the jurisdiction of the court is founded on
the assumption that the plaintiff McMicken is to be considered as
the assignee of McMicken & Ficklin of the note in question, and
that the petition does not allege that they could have prosecuted a
suit upon it in the courts of the United States, and that the case
therefore falls within the prohibition in the Judiciary Act that no
district or
Page 36 U. S. 39
circuit court shall have cognizance of any suit to recover the
contents of any promissory note or other chose in action in favor
of an assignee unless a suit might have been prosecuted in such
court to recover the said contents if no assignment had been made,
except in cases of foreign bills of exchange. 1 Stat. 79. But the
cause of action and the right of the plaintiff to sustain it do not
place him in the character of assignee. Ficklin never had any
interest whatever in the note, according to the allegations in the
petition; the partnership had been dissolved before the note in
question was given. The consideration thereof was McMicken's share
of the stock and goods on hand at the time of the dissolution of
partnership, and the petition avers that although the note is given
in the name of the late firm of McMicken & Ficklin, it was for
the sole and individual benefit of the petitioner, and that Ficklin
was in no wise a party or interested therein except as one of the
obligors; there was therefore no interest which Ficklin could
assign, and the objection is one purely of form and of a mere
technical character, which ought not to be noticed according to the
course of proceedings in the courts of Louisiana. The facts set
forth in the petition may well be considered as an averment that
the note was given to the petitioner McMicken under the name and
description of McMicken & Ficklin. And this view of the case
disposes of the matter set up by the other defendants in their
pleas to the jurisdiction of the court, as well as of that which is
set up in the third plea to the jurisdiction of the court.
There are other pleas to the merits interposed
de bene
esse by all the defendants and which have not, of course, been
in any manner considered or disposed of by the court below, as the
pleas to the jurisdiction of the court were sustained and the
petition dismissed. Nor does the record contain the necessary
matter to enable this Court to dispose of the case upon its merits;
some of these, turning upon questions of fact the evidence to
sustain which not all appearing upon the record, and the cause must
therefore necessarily go back for further proceedings on those
pleas. The judgment of the court below is accordingly
Reversed and the cause sent back for further
proceedings.
This cause come on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of
Page 36 U. S. 40
Louisiana and was argued by counsel. On consideration whereof it
is now here ordered and adjudged by this Court that the judgment of
the said district court in this cause be and the same is hereby
reversed, and that this cause be and the same is hereby remanded to
the said district court for the further proceedings to be had
therein according to law and justice, and in conformity to the
opinion of this Court.
*
* For a decision of this case upon the merits,
see
47 U. S. 6 How.
292.
