The demandant, a subject of the King of Great Britain,
instituted an action by writ of right in the District Court for the
Northern District of New York, against the defendant, a citizen of
New York. In the declaration, there was no averment that the
defendant was a citizen of New York. The defendant pleaded to the
first count in the declaration and demurred to the second and third
counts; the demandant joined in the demurrer and averred that the
defendant was a citizen of New York. In the subsequent proceedings
in the case in the district court and afterwards in the Supreme
Court, no exception was taken by the defendant that there was no
averment in the declaration that the defendant was a citizen of the
United States, and not until the case came a second time before the
Supreme Court, to which it was now brought by a writ of error,
prosecuted by the demandant in the writ of right. The defendant
moved to dismiss the writ of error, for the want of an averment of
the citizenship of the defendant in the declaration. The court
overruled the motion.
The district court was not bound to receive the averment of the
citizenship of the defendant in the joinder in demurrer, and
clearly ought not to have received it if it had been objected to by
the tenant. But he has waived the objection by failing to make it
at an earlier stage of the cause, and after the proceedings which
have taken place in the district court and in this Court, and when
the cause has been so long continued and allowed to proceed in the
same condition of the pleadings and averments, it would be unjust
to the demandant to dismiss it upon this mere technical
informality. The pleadings in fact contain all the averments
required by the decisions of this Court to give jurisdiction to the
courts of the United States, and as they appear to have been
acquiesced in by the tenant and regarded as sufficient in the
district court and were not objected to in this Court when the case
was here on the application for a mandamus, the informality cannot
be relied on now to dismiss the suit.
Mr. Beardsley moved to dismiss the writ of error, it not being
stated in the writ or declaration that the defendant was a citizen
of the State of New York. The plaintiff is an alien, and this is
stated in due form, but nothing is said of the citizenship of the
defendant.
The Constitution of the United States gives jurisdiction to the
courts of the United States when an alien is a party who sues a
defendant, a citizen of the state in which the suit may be brought,
and it has been expressly decided that both parties must be stated
descriptively in the pleadings. And where, as in this case,
jurisdiction depends on the character of the parties, the averment
of character
Page 37 U. S. 60
is not matter of form, but of substance, it may be traversed,
and in that event must be proved like any other material fact.
Cited,
9 U.S. 5 Cranch 303;
4 U. S. 4 Dall. 12;
3 U. S. 3 Dall. 382;
and 1 Cond. 170, where all the cases are collected in a note.
There is no averment of the value of the property in either
count of the plaintiff's declaration, although it appears from the
bill of exceptions, to have been of the value of two thousand
dollars. There is, however, no doubt of the right of the party to
prove the value of the property to be such as will give the right
to a writ of error; this is not now taken as an objection to the
proceeding to bring the case before this Court. The objection, so
far as respects the point of value, is that the court below had no
jurisdiction, there being no averment that the property was worth
more than five hundred dollars. The defendant relies on the absence
of the necessary averment of the citizenship of the defendant, as a
sufficient ground to dismiss the writ of error, the District Court
of New York not having had jurisdiction to entertain the cause.
Page 37 U. S. 62
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made by the defendant in error to dismiss this
case upon the ground that the averments necessary to give
jurisdiction to the courts of the United States do not appear in
the record. The decisions which have heretofore been made on this
subject render it proper that the circumstances under which this
motion comes before the Court should be stated.
Page 37 U. S. 63
A writ of right was brought in the District Court for the
Northern District of New York, to recover certain lands situated in
the State of New York. The demandant, in her declaration, avers
that she is an alien, and a subject of the King of the United
Kingdom of Great Britain and Ireland, but does not aver that the
tenant is a citizen of the State of New York, or of any other state
of the United States. The suit was brought to January term, 1825,
at which term the tenant appeared, and prayed leave to imparle
until the next term, "saving all objections as well to the
jurisdiction of the court as to the writ and count."
The case was continued from term to term until August term 1826,
when the tenant put in the usual plea to the first count, and
demurred to the second and third, setting down special causes of
demurrer. The demandant joined in the mise on the plea, and joined
in the demurrer, and in her joinder in demurrer she averred that
the defendant was a citizen of the State of New York. The want of
this averment of citizenship in the counts was not one of the
causes of demurrer assigned by the tenant. The demurrers were
decided against the demandant at August term, 1827, and further
proceedings were had which it is unnecessary to state here, and the
case continued until August term, 1831, when the defendant moved
the court to dismiss the suit for want of jurisdiction, assigning
as the foundation of this motion, the want of an averment of the
pecuniary value of the lands demanded in the counts filed by the
demandant.
The court sustained the motion and dismissed the suit. But at
that time no objection to the jurisdiction was made on account of
the omission to aver the citizenship of the tenant.
In 1832, this dismissal of the suit was brought before the
Supreme Court and a rule laid on the district court to show cause
why the case should not be reinstated in that court, and at January
term, 1833, a peremptory mandamus was issued by this Court,
commanding the district court to reinstate the suit, and "to
proceed to try and adjudge according to the law and right of the
case, the said writ of right and the mise therein joined." The
mandamus was obeyed and the cause reinstated, and the mise tried
and found against the demandant, and judgment entered against her
at November, 1837. The case is now before us upon a writ of error
on this judgment, and a motion is made to dismiss the case, upon
the ground that neither the district court nor this Court could
have jurisdiction of the
Page 37 U. S. 64
suit, because the demandant is an alien, and there is no
averment that the tenant was a citizen of New York.
The above statement of the proceedings makes it evident that the
dismissal of the suit, upon this ground, at this time, would be a
surprise upon the demandant, who has been prosecuting the suit for
many years, most probably under the impression that the averment of
citizenship contained in her joinder in demurrer, was considered by
this Court and by the district court, to be a sufficient compliance
with the rules of pleading established by the decisions of this
Court. For the averment in question was received in the district
court without objection, and indeed would seem to have been
regarded as sufficient by that court, because when the suit was
dismissed there, upon the ground that the counts did not contain
proper averments to give jurisdiction, no notice was taken of the
want of this averment in the counts, nor any objection to the place
where it had been inserted in the pleadings; and when the case was
brought before this Court, on the application for the mandamus, the
fault in the pleadings now charged, was not noticed by the court in
the opinion delivered, and does not appear to have been brought to
their attention by the counsel for the tenant.
32 U. S. 7 Pet.
634. The demandant might therefore reasonably have supposed that
the court deemed the averment sufficient, because certainly the
mandamus would not have been issued commanding the district court
to reinstate the case, and proceed to try it, unless this Court had
been of opinion that a sufficient cause was presented by the
pleadings to give jurisdiction to the district court.
The principle on which this averment has been required is purely
technical. But the rule has been established by the decisions of
this Court, and we do not mean to disturb it, and the proper place
for the averment is undoubtedly in the declaration of the plaintiff
in the cause.
The district court was not bound to receive it in the joinder in
demurrer, and clearly ought not to have received it, if it had been
objected to by the tenant. But he has waived the objection, by
failing to make it in an earlier stage of the cause, and after the
proceedings which have taken place in the district court, and in
this Court, and when the cause has been so long continued and
allowed to proceed in the same condition of the pleadings and
averments, it would be unjust to the demandant to dismiss it upon
this mere technical
Page 37 U. S. 65
informality. The pleadings, in fact, contain all the averments
required by the decisions of this Court, to give jurisdiction to
the courts of the United States, and as they appear to have been
acquiesced in by the tenant, and regarded as sufficient in the
district court, and were not objected to in this Court when the
case was here on the application for a mandamus; we do not think
the informality can be relied on now to dismiss the suit.
The motion is therefore
Overruled.
