181 F2d 182 Forcheimer v. Commercial Standard Ins Co

181 F.2d 182


No. 13070.

United States Court of Appeals Fifth Circuit.

April 21, 1950.
Rehearings Denied May 9, 24, 1950.

Phillip s. Kouri, Wichita Falls, Tex., for appellants.

O. R. Tipps, Wichita Falls, Tex., Hobert Price, Dallas, Tex., Milburn E. Nutt, Wichita Falls, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.


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This appeal is by the two defendants below, Charles M. Forcheimer and M. P. (Pete) Walinsky, from the judgment of the trial court, which denied their right to a trial by jury despite a demand therefor in compliance with Rule 38, Federal Rules of Civil Procedure, 28 U.S.C.A. We are of the opinion that the United States District Court had no jurisdiction as a Federal Court of the controversy presented to it by the plaintiffs, or by the counterclaim, and that the judgment must be set aside and the proceedings dismissed for that reason.


The ground alleged for Federal jurisdiction is diversity of citizenship and more than $3,000 involved, but the complaint itself discloses that one of the plaintiffs, Commercial Standard Insurance Company, is a Texas corporation and that one of the defendants, M. P. (Pete) Walinsky, is also a citizen of the State of Texas. There is no averment of citizenship in respect to the two remaining plaintiffs and the other defendant is alleged to be a citizen of the State of Missouri. The necessary complete diversity is clearly lacking. Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435; Raphael v. Trask, 194 U.S. 272, 24 S.Ct. 647, 48 L.Ed. 973.


We accordingly reverse the judgment and direct that the proceedings in the United States District Court be dismissed for want of jurisdiction.