1. Where the jurisdiction of a court of the United States
depends upon the citizenship of the parties, such citizenship, and
not simply their residence, must be shown by the record.
2. The ruling in
Railway Company v.
Ramsey, 22 Wall. 322, approved in
Briges v.
Sperry, 95 U. S. 401, that
such citizenship need not necessarily be averred in the pleadings
if it otherwise affirmatively appears by the record, does not apply
to papers copied into the transcript which do not make a part of
the record by bill of exceptions, or by an order of the court
referring to them, or by some other mode recognized by law.
3. The presumption that a case is without the jurisdiction of
the circuit court remains now as it was before the adoption of the
Fourteenth Amendment to the Constitution of the United States.
4. The defendant having made no objection in the court below to
its jurisdiction by reason of the nonaverment of the citizenship of
the plaintiff, this Court, in reversing the judgment, grants leave
to the latter to amend his declaration in respect to his
citizenship at the commencement of the suit if it be such as to
authorize that court to proceed with the trial.
Page 97 U. S. 647
MR. JUSTICE HARLAN delivered the opinion of the Court.
This action was instituted on the 25th of September, 1873, by
Cease as the assignee of a note for $4,190 executed in Texas by
Robertson, plaintiff in error, on the 2d of October, 1860, and made
payable July 1, 1861, to the order of W. J. Chamblin, with interest
at the rate of ten percent per annum from date.
Does it sufficiently appear from the record that the case is
within the jurisdiction of the circuit court? That is the first
question to be considered upon this writ of error.
The payee, Chamblin, a citizen of Illinois, died in that state
on the 29th of April, 1871. In September, 1873, the note sued on
was assigned by his administrators to Cease. It appears from the
pleadings that the heirs and administrators of Chamblin were also
citizens of Illinois, both when the note was assigned to Cease and
at the commencement of this action. It is also averred that
Robertson, when sued, was a citizen of Texas, but there is no
allegation as to the citizenship of Cease. The averment as to him
is that he "resides in the County of Mason and State of Illinois."
It is, however, claimed by counsel to be apparent or to be fairly
inferred from certain documents or papers copied into the
transcript that Cease was, at the commencement of the action, a
citizen of Illinois. One of those documents is a written notice,
served by Robertson upon Cease's attorneys, that he would apply for
a commission to examine as witnesses, in support of the plea in
abatement, "Chamblin, Winn, and Henry Cease, citizens of the County
of Mason, State of Illinois." The commission which issued, under
the notice, from the clerk's office directed the examination of
these witnesses, who are, in that document also, described as
citizens of Illinois. The other document referred to is the
deposition of Cease, which opens thus: "My name is Henry Cease;
residence, Mason County, Illinois; age, 52 years; occupation, grain
dealer and farmer."
Page 97 U. S. 648
It is the settled doctrine of this Court that in cases where the
jurisdiction of the federal courts depends upon the citizenship of
the parties, the facts essential to support that jurisdiction must
appear somewhere in the record. Said the Chief Justice in
Railway Company v.
Ramsey, 22 Wall. 322: "They need not necessarily,
however, be averred in the pleadings. It is sufficient if they are
in some form affirmatively shown by the record." That view was
approved in the subsequent case of
Briges v. Sperry,
95 U. S. 401. Under
the doctrine of these cases, it is contended that the citizenship
of Cease in Illinois is satisfactorily shown by the foregoing
documents, which, it is insisted, are a part of the record upon
this writ of error. But this position cannot be maintained. It
involves a misapprehension of our former decisions. When we
declared that the record, other than the pleadings, may be referred
to in this Court to ascertain the citizenship of parties, we
alluded only to such portions of the transcript as properly
constituted the record upon which we must base our final judgment,
and not to papers which had been improperly inserted in the
transcript. Those relied upon here to supply the absence of
distinct averments in the pleadings as to the citizenship of Cease
clearly do not constitute any legitimate part of the record. They
are not so made either by a bill of exceptions, or by any order of
the court referring to them, or in any other mode recognized by the
law. As there is nothing to show that the deposition of Cease or
the commission or notice under which it was taken was before the
jury or the court for any purpose during the trial, no fact stated
in them can be made the foundation of any decision we might render
either upon the merits or the question of jurisdiction. Looking,
then, at the pleadings and to such portions of the transcript as
properly constitute the record, we find nothing beyond the naked
averment of Cease's residence in Illinois, which, according to the
uniform course of decisions in this Court, is insufficient to show
his citizenship in that state. Citizenship and residence, as often
declared by this Court, are not synonymous terms.
Parker v.
Overman, 18 How. 137.
In the oral argument before this Court, the inquiry arose
whether since the adoption of the Fourteenth Amendment to the
Page 97 U. S. 649
federal Constitution the mere allegation of residence in
Illinois did not make such a
prima facie case of
citizenship in that state as, in the absence of proof, should be
deemed sufficient to sustain the jurisdiction of the circuit court.
That amendment declares that
"All persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
States and of the state where they reside."
It was suggested that a resident of one of the states is
prima facie either a citizen of the United States or an
alien -- if a citizen of the United States, and also a resident of
one of the states, he is, by the terms of the Fourteenth Amendment,
also a citizen of the state wherein he resides -- and if an alien,
he was entitled in that capacity to sue in the federal court,
without regard to residence in any particular state. It is not to
be denied that there is some force in these suggestions, but they
do not convince us that it is either necessary or wise to modify
the rules heretofore established by a long line of decisions upon
the subject of the jurisdiction of the federal courts. Those who
think that the Fourteenth Amendment requires some modification of
those rules claim not that the plaintiff's residence in a
particular state necessarily or conclusively proves him to be a
citizen of that state within the meaning of the Constitution, but
only that a general allegation of residence, without indicating the
character of such residence, whether temporary or permanent, made a
prima facie case of right to sue in the federal courts. As
the jurisdiction of the circuit court is limited in the sense that
it has none except that conferred by the Constitution and laws of
the United States, the presumption now, as well as before the
adoption of the Fourteenth Amendment, is that a cause is without
its jurisdiction unless the contrary affirmatively appears. In
cases where jurisdiction depends upon the citizenship of the
parties, such citizenship, or the facts which in legal intendment
constitute it, should be distinctly and positively averred in the
pleadings or they should appear affirmatively and with equal
distinctness in other parts of the record. And so where
jurisdiction depends upon the alienage for one of the parties. In
Brown v.
Keene, 8 Pet. 115, Mr. Chief Justice Marshall
said:
"The decisions of this Court require that the averment of
jurisdiction shall be positive, that
Page 97 U. S. 650
the declaration shall state expressly the fact on which
jurisdiction depends. It is not sufficient that jurisdiction may be
inferred argumentatively from its averments."
Here the only fact averred or appearing from the record is that
Cease was a resident of Illinois, and we are in effect asked, in
support of the jurisdiction of the court below, to infer
argumentatively from the mere allegation of "residence" that, if
not an alien, he had a fixed permanent domicile in that state and
was a native or naturalized citizen of the United States, and
subject to the jurisdiction thereof. By such argumentative
inferences, it is contended that we should ascertain the fact,
vital to the jurisdiction of the court, of his citizenship in some
state other than that in which the suit was brought. We perceive
nothing in either the language or policy of the Fourteenth
Amendment which requires or justifies us in holding that the bare
averment of the residence of the parties is sufficient,
prima
facie, to show jurisdiction. The judgment must therefore be
reversed upon the ground that it does not affirmatively appear from
the record that the defendant in error was entitled to sue in the
circuit court.
The plaintiff in error insists that the reversal should be with
directions to dismiss the petition, since he contends that an
amendment of the pleadings stating the citizenship of Cease would
be in legal effect a new suit, asserting a new cause of action,
which would be barred by the statute of limitations. But it is
clear that an amendment of that nature could not be so regarded
either upon principle or authority. It would introduce no new cause
of action. It would only show, if its allegations as to citizenship
are true, that the court had jurisdiction, from the commencement of
the litigation, of the cause of action set out in the original
petition. Whether after such an amendment the action would be
barred by limitation would depend upon the time which had elapsed
before the filing of the original petition, and not upon the time
which had elapsed previous to the amendment. The allowance of such
an amendment, under the circumstances of this case, is sustained by
the former practice of this Court. In
Morgan's
Ex'rs v. Gay, 19 Wall. 81, the judgment of the
court below was reversed because it did not affirmatively appear
that the citizenship of the parties was
Page 97 U. S. 651
such as to give it jurisdiction, and the cause was sent back
"that amendment may be made in the pleadings, showing the
citizenship of the endorser of the bills, if it be such as to give
the court jurisdiction of the case."
Such a course is peculiarly proper in this case in view of the
failure of the plaintiff in error to make in the court below the
precise question of jurisdiction which he urges upon our
consideration. He filed, it is true, a plea to the jurisdiction of
the circuit court, but it did not impeach its jurisdiction upon the
distinct ground that Cease did not appear to be a citizen of the
state in which he resided. His denial of jurisdiction was upon the
ground that the assignment to Cease was merely colorable and for
the fraudulent purpose of dispensing with letters of administration
upon Chamblin's estate in Texas, thereby enabling a suit to be
brought in the court below, in the name of the assignee but really
for the use and benefit of that estate. The parties, as we infer
from the record, went to trial before the jury without any real
controversy as to the citizenship of Cease being in Illinois. After
verdict, Robertson moved in arrest of judgment, upon the general
ground that there was
"no cause of action stated in plaintiff's petition of which this
Court can take cognizance, and because it appears from the face of
the pleadings that this court has no jurisdiction of the
cause."
But we cannot feel sure from this general language or from
anything in the record that attention was called in the court below
to the defect in the pleadings to which our attention has been
specially directed. For these reasons, the defendant in error
should be allowed to amend the petition in respect to his
citizenship at the commencement of the action, if his citizenship
was then such as to authorize the court to proceed with the
trial.
The assignment of errors embraces other questions, as to which
we withhold any expression of opinion. Since the record shows no
case of which the circuit court had jurisdiction, we do not feel at
liberty, upon this writ of error, to determine any point affecting
the merits of the litigation.
The judgment of the circuit court must therefore be reversed,
with directions to grant a new trial and for such further
proceedings as may be in conformity to this opinion, and it is
So ordered.