After the answers of this Court to the questions of the circuit
court of appeals in this case, reported in
New Orleans v.
Benjamin, 153 U. S. 411,
Benjamin amended his bill in the circuit court by inserting an
averment that
"each of said persons in whose favor said claims accrued and to
whom said certificates were issued, are now, and were on the 9th
day of February, 1891, citizens respectively of states other than
the Louisiana, and competent as such citizens to maintain suit in
this honorable court against the defendants for the recovery of
said indebtedness, represented by said certificates, if no
assignment or transfer thereof had been made."
The city demurred on the ground that the case was not one of
equitable cognizance and that the amendment was insufficient to
show jurisdiction. This demurrer was sustained in the circuit
court, and the circuit court of appeals affirmed its decree because
the necessary diversity of citizenship was not affirmatively shown.
Held that this judgment of the circuit court of appeals
was final, and could not be appealed from.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This was a bill filed by Henry W. Benjamin, "an alien and a
subject of the Kingdom of Great Britain," on February 9, 1891, in
the Circuit Court of the United States for the Eastern District of
Louisiana
"against the City of New Orleans, a municipal corporation
created by the laws of the State of Louisiana and a citizen of said
state; the City of Kenner, also a municipal corporation created by
the laws of, and a citizen of, said state; the police jury of the
Parish of Jefferson and
Page 169 U. S. 162
the police jury of the Parish of St. Bernard, political
corporations created by the laws of, and citizens of, said
state,"
seeking to collect, in the manner and on the grounds therein set
forth, certain metropolitan police warrants or certificates. The
defendants other than the City of New Orleans seem to have dropped
out in the course of the proceedings.
The jurisdiction of the circuit court was attacked by defendant,
but was maintained, and a decree entered in favor of complainant,
from which defendant appealed to the Circuit Court of Appeals for
the Fifth Circuit, whereupon that court certified certain questions
to this Court, by the answers to which it was determined that no
such dispute or controversy arose in the case as gave jurisdiction
to the circuit court without regard to the diverse citizenship of
the parties, and that, as the suit was, under the pleadings, a suit
to recover the contents of choses in action, within the meaning of
the Judiciary Act of 1887 and 1888, by the assignee thereof, and it
did not appear that it could have been brought in that court by the
assignors, the jurisdiction of the circuit court could not be
maintained on the ground of diverse citizenship.
New Orleans v.
Benjamin, 153 U. S. 411.
On receipt of the answers certified from this Court, the circuit
court of appeals reversed the decree of the circuit court and
ordered that court to dismiss the bill unless by amendment its
jurisdiction could be made affirmatively to appear. Thereupon
complainant amended the bill by inserting the following:
"And your orator avers that each of said persons in whose favor
said claims accrued, and to whom said certificates were issued, are
now, and were on the 9th day of February, 1891, citizens,
respectively, of states other than the State of Louisiana, and
competent as such citizens to maintain suit in this honorable court
against the defendants for the recovery of said indebtedness
represented by said certificates, if no assignment or transfer
thereof had been made."
The City of New Orleans demurred for the reasons that the case
was not one of equitable cognizance and that the amendment was
insufficient to show jurisdiction. The circuit court sustained the
demurrer on both grounds and dismissed the
Page 169 U. S. 163
bill (71 F. 758), whereupon the cause was taken to the circuit
court of appeals, which affirmed the decree because the necessary
diversity of citizenship was not affirmatively shown. 74 F.
417.
The case was not brought here directly from the circuit court of
the United States on the question of the jurisdiction of that court
as such, nor did the circuit court of appeals, when the case came
before it for the second time, certify any question on which it
desired our instruction.
On the contrary, this is an appeal from a judgment of the
circuit court of appeals affirming the decree of the circuit court,
and the inquiry at once presents itself as to our jurisdiction to
entertain such appeal.
By the sixth section of the Judiciary Act of March 3, 1891, the
judgments or decrees of the circuit courts of appeals are made
final in certain classes of cases, and, among others,
"in all cases in which the jurisdiction is dependent entirely
upon the opposite parties to the suit or controversy, being aliens
and citizens of the United States, or citizens of different
states."
This case confessedly did not belong to either of the other
classes, and if it fell within the class just mentioned, this
appeal will not lie.
The judicial power extends to controversies between citizens of
different states and between citizens of a state and citizens or
subjects of foreign states, but from the Judiciary Act of 1789 to
the Act of August 13, 1888, it has been provided, in substance (the
differences being immaterial here), that no circuit court shall
"have cognizance of any suit, except upon foreign bills of
exchange, to recover the contents of any promissory note or other
chose in action in favor of any assignee, or of any subsequent
holder if such instrument be payable to bearer and be not made by
any corporation unless such suit might have been prosecuted in such
court to recover the said contents if no assignment or transfer had
been made."
And, to avoid the operation of this limitation, it is necessary
in such cases that the record should show that the suit could have
been maintained in the circuit court in the name of the assignor.
Parker v. Ormsby, 141 U. S. 81.
Page 169 U. S. 164
As this suit stood after it had been determined that the
jurisdiction of the circuit court could not be invoked on the
ground that the cause of action arose under the Constitution or
laws of the United States, the jurisdiction rested on the fact that
the complainant was an alien and the defendant a citizen of
Louisiana, although, by reason of the restriction, it was also
essential that it should appear that complainant's assignors might
have brought suit in the circuit court if they had not assigned
their claims.
But the jurisdiction was nonetheless dependent on diverse
citizenship as between complainant and defendant, because it might
be defeated if complainant did not bring himself within the
restriction. The diverse citizenship of the assignors of the claims
was not another ground of jurisdiction than the diverse citizenship
of complainant and defendant, and the sixth section, in referring
to cases in which the jurisdiction is dependent entirely on diverse
citizenship between the opposite parties to the suit or
controversy, refers to cases where no other distinct ground of
jurisdiction is relied on. It frequently happens that more than one
ground is set up as between the same parties, and also separate and
different grounds in respect of one or more of several parties. We
think the case, within the intent and meaning of that section,
clearly belongs to the class in which the judgments and decrees of
the circuit court of appeals are made final.
Appeal dismissed.
MR. JUSTICE WHITE took no part in the consideration and decision
of this case.