Although consent of the parties to a suit cannot give
jurisdiction to the courts of the United States, the parties may
admit the existence of facts which show jurisdiction, U.S. and the
courts may act judicially upon such an admission.
Where the statutes of the United States authorizing a removal
into the circuit court of the United States of a cause brought
originally in the courts of a state require that the parties to the
suit shall be citizens of different states, and where a cause has
been removed from a state court to a circuit court, and all the
papers in it have been afterwards destroyed by fire, and the
parties then, by writing filed in the circuit court, admit that the
cause was brought to the circuit court by transfer from the state
court, in accordance with the statutes in such case provided, and,
being now anxious apparently only to get to trial, simply ask and
get leave to file a declaration and plea as substitutes for the
ones originally filed and now destroyed, in such case this Court
will, in the absence of all proof to the contrary, presume that the
citizenship requisite to give the circuit court jurisdiction was
shown in some proper manner, though it be not apparent on the mere
pleadings.
Several statutes authorize, as is known, the transfer or removal
of causes commenced in the state courts to those of the United
States.
First. Where the amount in dispute, exclusive of costs,
exceeds $500, and when the suit is
against an alien, or is
by a citizen of the state where it is brought and against a
citizen of
Page 89 U. S. 323
another state, it may be removed on the petition of the
defendant filed in the case, in the state court, at the time of
entering his appearance in said court.
*
Second. When the suit is
against an alien, and a
citizen of the state wherein it is brought, or is
by a
citizen of such state against a citizen of the same,
and a
citizen of another state, upon petition of the defendant,
filed at any time before trial or final hearing, if (so far as
relates to him) it is brought for the purpose of restraining or
enjoining him, or is a suit in which there can be a final
termination of the controversy, so far as concerns him, without the
presence of the other defendants, as parties in said cause.
Third. When a suit is between
a citizen of the
state in which it is brought and a citizen of another state,
it may be so removed on the petition of the latter, whether he be
plaintiff or defendant, filed at any time before the trial or final
hearing of the suit, if before or at the time of filing said
petition he makes and files in said state court an affidavit,
stating that he has reason to and does believe that, from prejudice
or local influence, he will not be able to obtain justice in such
state court.
To effect a removal in any of the cases, the petitioner must, at
the time of filing his petition in the state court, offer to the
state court
"good and sufficient security for his entering in said circuit
court on the first day of its session copies of said process
against him, and of all pleadings,
depositions, and testimony,
and other proceedings in the case, or in said cases, where a
citizen of the state where the suit is brought is a defendant,
copies of all process, pleadings,
depositions, testimony, and
other proceedings in the cause
concerning or affecting the
petitioner"
&c.
These different statutes being in force, and the only ones on
the subject, the record in the present case came here.
It showed that Ramsey originally commenced an action against the
Pittsburg, Cincinnati & St. Louis Railway
Page 89 U. S. 324
Company in the Superior Court of the City of Chicago; that the
suit was afterwards transferred,
according to the statutes in
such case provided, to the Circuit Court of the United States
for the Northern District of Illinois; that while it was pending in
that court undetermined, the files and pleadings were all destroyed
by fire; that after the fire, the plaintiff asked leave to file a
declaration as a substitute for the one destroyed; that the
defendant assented to this request, and on the same day the court
made an order, as follows:
"By agreement of the parties, by their attorneys, as per
stipulation filed, leave is given them to file a copy of the
declaration and plea heretofore filed herein and destroyed by fire
on the 9th of October last, and it is ordered that they be
substituted for and stand in the place of the original declaration
and plea so destroyed."
That thereupon copies of such pleadings were filed, but that
there was nothing in the declaration or plea to show the
jurisdiction of the circuit court; that on the 11th June,
1872, the parties went to trial upon the issues joined, and that a
verdict was rendered for the plaintiff on the 14th of the same
month; that on the same day the defendant filed a motion for a new
trial, and on the 29th a further motion in arrest of judgment, for
the reason that there was nothing upon the record to show that the
court had jurisdiction, and that on the 29th of December following,
the court overruled both motions and gave judgment upon the
verdict.
It nowhere appeared that either of the parties attempted to
supply any of the lost files except the pleadings, or that any
objection was made to the jurisdiction until after the trial was
had and a verdict rendered.
The action of the court in overruling the motion in arrest of
judgment was the only matter now assigned for error.
Page 89 U. S. 326
THE CHIEF JUSTICE delivered the opinion of the Court.
In cases where the jurisdiction of the courts of the United
States depends upon the character of the parties, as it no doubt
does in this, the facts upon which it rests must, of course,
somewhere appear in the record. They need not necessarily, however,
be averred in the pleadings. It is sufficient if they are in some
form affirmatively shown by the record.
Here, the parties have, by stipulation and agreement placed on
file and made part of the record, admitted that the cause was
brought to the circuit court by transfer from a state court in
accordance with the statutes in such case provided. By the same
stipulation it is made to appear that all the original files in the
cause had been destroyed by fire. True, the stipulation refers
specially to pleadings alone, but in this Court, after what has
occurred below, it may with great propriety be assumed that it was
intended to include all papers and entries in the cause.
Page 89 U. S. 327
The parties, after this destruction, asked to supply the
pleadings. Neither party seems to have considered that anything
else was necessary. Each, apparently admitting jurisdiction, seemed
anxious to get ready for trial. They were permitted to file copies
of the lost declaration and plea and thus make up their issues. The
record now before us contains none of the lost files, but is made
up of the stipulation above stated, the substituted pleadings, and
the proceedings thereafter.
We have, then, a case before us upon error in which the record
presented shows upon its face that part of the files in the cause
were destroyed before the record was made, and that neither one of
the parties has considered it necessary to have them supplied. The
question arises, therefore, whether under such circumstances we are
confined to what is in terms expressed upon the record sent to us,
or whether we may resort to presumptions to give effect to what is
expressed.
We are reviewing the action of another court, and are to
determine whether or not there is error in what it has done. The
restoration of the lost files was not absolutely necessary to
support the jurisdiction of that court. Having been once there, the
court is presumed to know their contents and is permitted to act
upon that knowledge. Parol proof, too, is admissible to aid the
memory of the court.
Consent of parties cannot give the courts of the United States
jurisdiction, but the parties may admit the existence of facts
which show jurisdiction, and the courts may act judicially upon
such an admission.
Here, the parties have put into the record their joint admission
that the cause was transferred to the circuit court from a state
court, and that the evidence of the transfer which was once among
the files has been destroyed. They have asked the court to act upon
this admission and proceed with the cause. The court did proceed.
The fair presumption from all this is that it was then within the
knowledge of the parties and the court that there had been on the
files in the cause everything which the statute required to be
Page 89 U. S. 328
there to complete the transfer, and that the appearance and
admission of the parties was expected and intended to have all the
force and effect which a restoration of the papers could have. If,
therefore, with these papers in the record, the jurisdiction would
appear, the judgment ought not to have been arrested, and there is
consequently no error.
We are then permitted to inquire what the lost papers would have
shown if they had been incorporated into the record, and for that
purpose may presume they contained all that the law required they
should.
To obtain the transfer of a suit, the party desiring it must
file in the state court a petition therefor and tender the required
security. Such a petition must state facts sufficient to entitle
him to have the transfer made. This cannot be done without showing
that the circuit court would have jurisdiction of the suit when
transferred. The one necessarily includes the other. If upon the
hearing of the petition it is sustained by the proof, the state
court can proceed no further. It has no discretion and is compelled
to permit the transfer to be made. The petitioning party is then
required to file in the circuit court copies of the process and of
all pleadings, depositions, testimony, and other proceedings in the
state court. This includes the proceedings by which the transfer
was effected, and these, as has been seen, must show the facts
necessary to give the circuit court jurisdiction.
Such are the papers which we are to presume were filed in this
cause, and from what has occurred, the conclusion is irresistible
that they must have contained all that was necessary to justify the
court in accepting the transfer. This it need not have done unless
the jurisdiction was apparent. Either party, upon the filing of the
papers, could have moved to remand, or the court itself, without a
motion, could have sent the case back if the jurisdiction did not
appear. As both the court and the parties accepted the transfer, it
cannot for a moment be doubted that the files did then contain
conclusive evidence of the existence of the jurisdictional
facts.
Page 89 U. S. 329
This ends the case. With the lost files in the record, we should
see that the court had the right to permit the parties to litigate
before it as they did.
There is here no question of a restoration of lost records. This
record has never been lost. It was not made until after the fire.
The litigation was pending when that calamity occurred. What has
been lost is part of the files which, when the time arrived to make
up a record, would have been incorporated into it. What we have to
consider is whether in the record as made their loss has been
supplied. We think it has by the recorded acts of the parties and
their stipulation.
Judgment affirmed.
*
See the statutes embodied in section 630 of the
Revised Statutes of the United States, 873, 874, title 13, chapter
7.
