(SOUTHWESTERN 'l'ELEGRAPH & TELEPHONE CO.
v. ROBINSON. '
(Cwcuit Court of Appeals, li'iJ'th OIircuit. November 27, 1891.)
ApPEAL-JURISDIOTION. OF COURT BELOW-REOORD-REMOVAL OF CAUSES.
s.' SAME....Rml:OvAL OF
When a caUse has be.en removed from a state to a federal circuit court, and thence carded to .the circuit court of appeals, the jurisdiction of the circuit court must appE\ar affirmatively upon the record, otherwise the judgment will be reversed, with directions to remand to the state court. An averment of rElsidence is not equivalent to an aVerment of citizenship under the removal of causes acts; and, where the cause is of a character which is only removable hecause of diversity of citiZenship, an averment· showing diversity of residence only is insuffioient to sustain the jurisdiotion of. the federal oircuit oourt·
. When a oause is brought from the cirouit oourt to the cirouit court of appeals :by the defendant, who removed it from a state court, and is there reversed, because' the record fails to show jUrisdiction in the oircuit court, the defendant should be taxed witb the oosts.
Error 'to the Circuit Court for the Northflrn metrict of Texas. ReVersed. . John W. Wray, for plaintiff in error. M. L. Orawford, for defendant in error. Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges. PARDEE, J. The record shows a suit brought in the district court of Cooke county, state against the Southwelltern Telegraph & Telephone Company to recover damages suffered by the plaintiff through the negligence of the defendant. The suit was afterwards removed by order of the state court to the United States circuit court for the northern district of Texas. Upon what grounds the removal was made pear. one, however, in which the jurisdiction of the circuit court must depend upon the citizenship of the parties. The petition filed in the state court commences as follows: . "Yourpelitioner. J. B. Robinson, a resident of Cooke county, Tex., complaining of tbe South westei'n Telegraph & Telephone Company, a private corporation, incorporated under the laws of the state of New York, but doing iQ. the state of Texas, baving a legal office at GaillesviHe,CpQke county, respectfully rep,resents, etc. Beyond this in the record there is no averment or showing as to citizenship 6f the parties. The jurisdiction of the circuit courts must pear affirmatively in the record. insurance 00. v. Rhoads, 119 U. S. 237,7 Sup. Ct. Rep. 193; Timmons v. Land Co., 139 U. S. 378, 11 Sup. Ct. Rep. 585. "Where the jurisdiction of the circuit court does not appear in the record, the appellate court will, on its own motion, notice the defect, and make disposition of the case accordingly." Railway 00. v. Swan,. 111 U. S. 379, 4 Sup. Ct. Rep. 510; Everhart v. Huntsville Oollege, 120 U. S. 223,7 Sup. Ct. Rep. 555. "It is well settled that an averment of residence is not the equivalent of an averment of citizenship in the courts of the United States." See Menard v. Goggan, 121 U. S. 253, 7 Sup. Ct. Rep. 873, and cases there cited. "Whel1ftsuit v,48F.no.l0-49
which has been removed from a state court is brooght up by appeal or writ of error, and it does not appear on the face of the record that the citizenship of the parties was such as to give the circuit court jurisdiction upon removal, the judgment or decree of the circuit court will be reversed, and the cause sent back with instructions to remand it to the state COJ;lrt from which it. was improperly removed." Railway Co. v. Swan, BWpraj Hancock v. Holbrook. 112 U. S.229, 5 Sup. Ct. Rep. 115. In the present case it does not appear on the face of the that the citizenship of the .partieIJ was such as to give the circuit court jurisdiction upon· the removal. It follows that the judgment of the circuit court./lh9"u1d be reversed, and the causa sent back, with instructions to remand it to the state court from which it was removed. As the plaintiff in error. brought the case into the circuit court as wall as to· this court, he should not be allowed to recover costs, but should 'be condemned tCJ 'pay thettl. See Hancockv. Holbrook, sttpraj Timmons v. Land 0:>·· supra. The decree of the circuit court is reversed, with instructions to reand thll caul!le is ordered returned to that mand it to the state court from which it was removed. All costs of thiS'. and the circuit court are to be adjudged against the plaintiff in error. .
v. ARGENTINE MIN. Co.
(CircwU Oourt, D. Oolorado. November. 1880.
hcrolfmION-VIOLA;TION-PaOSBOUTION J'oa CONTEMPT.
Upon,tb.,filing of a l1ill alleging plaintiff's ownersbip ofa sUver mine tben In defendant'spossession, a 'preliminary injunotion was granted. restraining defendant from taking ore therefrom pending tbe suit.. Plainti1! thereupon ejected defend· ant, and bimself took possession. On application to the court, plaintl1! was ordered to restore tbe possession. and abstain from further interference therewitb pending the Buit. Held, tbat plaintiff was not also punishable for contempt as for a tionof his own injuncti,on,as it did not in· terms forl1id bim to take possession.
In Equity·. 'Prosecution for contettlpt in violating an injunction. The bill alleged plaintiff's ownership of a ('ertain silver mine in Colorado, then in the possession of the defendant; and upon his application a preliminary injunction was granted, restraining defendant from mining or disposing of any ore pending the suit. Afterwards plaintiff ejected .thedefendant, and himself took possession of the mine. Upon application by defendant, and proof of this fact, an order was made, · requiring plaintiff to restore possession, and to abstain from further interference therewith pending the suit. Thereupon defendant also moved for an order requiring plaintiff to show cause why he should not be punished for contempt in Violating his own injunction. Dixon Reed,· for the motion. Thomas Campbell, contra. Before McCRARY and HALLETT, JJ. ·