versely to the Southern Pacific Railroad Company and the said acts of congress. I do The, allegation is that the defendants are iD,:possession of that portion of the ,premises called the "Cincinnati Mining Claim," and thatori the 22ddayofJuly, 1885, one GriffeIl;jW,l).,S.p.,olding and clll;imin,g the adversely to the said Southern Pacific Ra:iXroad CompanYihllt there, is 'no that Griffen or the de(¢ncll:\rltS;Q,rany of thepl, were'holditlg adversely to the Southern Pacifl.oRailro8.dCompiuly iwhen, the .broQgp.'t, or to anybody except to the plttintiff, ana only on account of the said contract. The as a)imi,tat,ion Qfdef¢l1dants' possession, and Ils'inQ<l1'cement .the. contract. Besides, Mr. (Jook defense to the .action will the ground, and no other than, the existence andefl'ectof such contract with Griffen. It is ordered, therefore, that the action be dismissed, and defendants have judgment· for' costs. ' .
11ay 16, 1892.)
... . Where thGjurisdiction <;If
,is founde.d only on the tact}>f dive!'88 cltizenshiv. tjle complaint must show that either plalntti! or defendant resides within the dI8trict in Whioh the action isbrouA'ht.
. At Law. ' Action' byL. Laskey' and! A. R. Conklin against the Newtown MibingCompany. Demurrel'for want of jurisdiction. Sustained. 'Garber, Boalt &: BishOp,· forplaintift's. Reddy, OampbeU &: Met8on,·for defendant. ,Ross;'DistrictJudge. ,The complaint filed in this case, to which a demurrer is interpol3ed, shows upon its face diverse citizenship of the Jiarties, but it does not lJTIege that either the plaintiffs or defendant rallide within this judiciaJ. district; and ,the question presented and argued bY,counsel is whether, under the provisions of the present judiciary act, it is essential that the complaint should show that the suit is brought in the district oUhe residence of either the plaintiff or defendant, where, as, here, jurisdiction is fottt,rded only on the fact that the action is between citizens of different states.. The judiciary actof 1789, after prescribing the cases in which the United States circuit courts should have .original cognizance, provided as foUowa: .. And no civil suit shall be brought hefore either of said courts against an 5nhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found ut the time of serving the writ." 1 U. S. St. at Large, p. 78 et seq.
V. NEWTOWN MIN. 00.
Substantially the same provision was incqrporated into the Revised (section 739,) and into the judiciary act of 1875, (18 U. S. St. at Latge, p. 470 et seq.) Under each of those acts a defendant might be sued, not onlyinthe district of which he was an inhabitant. but also in any district in which he was found at the time ofserving the writ; and it was repeatedly held that the provision in those acts in respect to the district in which every civil suit should be brought was not a jurisdictional requirement, but the grant of a privilege to the defendant, which might be waived; and. therefore, that it was not necessary to aver that the defendant was an inhabitant of the district, or was found therein. Gracie Y. Palmer, 8 Wheat. 699, and authorities cited in note to section 739,. Desty, Fed. Proc. The act of March 3, 1887, (24 St. p. 552,) as amended by the act of August 13, 1888, (25 St. p. 433,) leaves out the provision that if the defendant have the diverse citizenship required by the statute he may be sued in any district where he may be found at the time of the service of process. "The omission of these words," said thE' supreme court in Smith v. Lyon, 13B U. S. 315, 10 Sup. Ct. Rep. 303, "and the increaseo! the amount in controversy necessary to the jurisdiction of the circuit cOllrt, and the repeal of so much of the former act as allowed plaintiffs to remove causes from the state courts to those of the United States, and many other features of the new statute, show the purpose of the to restrict rather than to enlarge the jurisdiction of the circuit court.s, while, at the same time, a suit Is permitted to be brought in any district where either plaintiff or defendant resides." This latter provision of the act of March 3, 1887, as amended by that of August 13, 1888, is, according to the decision of the court in the case of Smith v. Lyon, jurisdictional. The court there say: "The first section of the act confers upon the circuit couJts of the United States original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the mattE-r in dispute exceeds the sum of $2,000, and arisps under the constitution or laws of the United States, or treaties made or which shall be made under their authority. It then proceeds to establish a jurisdiction in reference to the parties to the suit. These are controversies in which the United States are plaintiffs, or in which there shall be a controversy lIetWE-en citizens of different states, with a like limitation upon the amount in dispute, and othE-r controversies bEltween parties which are described in" the statute. This first clause of the act describes the jurisdiction common to all the circuit courts of the United states, as regards the SUbject-matter of the suit, and as regards the character of the parties who, by reason of such character, may. either as plaintiffs or defendants, sustain suits in circuit courts. But the next sentence in the same section undertakes to define the jurisdiction of each one of the several circuit courts of the United States with reference to its territorial limits, and this clause declares' that no person shall be arrested in one district for trial in another in any civil action before a circuit or district court, and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.' In the case before us, one of the plaintiffs is a citizen of the state where the suit is brought, namely, the state of Missouri, and the defendant is a citizen of the state of
citizen·. nor as defendant is he a citizen of the district where the suit isi;lrought. The argument in support of the error assigned is that it is sufficient if the suit is brought in a state where one of the defendants or one of the plaintiffs is a citizen. This would be true if there were but ona plaintiff or one defendant. But the statpte makes no provision, in terms, for the case of two defelldants or two plaintiffs who are citizens of different states. In the present case, there being two plaintiffs, citizens of diffflrent states, there does not seem to be, in tne hmguage of the statute. any provision that both plaintiffs may unite in one Buit a state of which either of them is a citizen. It may be conceded that the question thus presented, if merely a naked one of construction of language in a statute, introduced for the first time,would be one of very considerable doubt. But there are other considerations which must influence our judgment, and which solve this doubt in favor of the proposition that such a suit cannot be sustained." This decision is,l think, conclusive of the question here. It is well settled that the circuit courts have no jurisdiction except such as is conferred by the constitution and laws of the United States, and that to bring a case within it the jurisdiction must be affirmatively shown. It seem to follow, necessarily, that the complaint or other pleading by which the suit is commenced must show that the case is within the jw,'isdiction of the court; and as, under the present statute, if I correctly interpret the decision of the supreme court in the case of Smith v. Lyon, 8upra, the circuit court has no jurisdiction of a suit where jurisdiction that the action is between citizens of different is founded only on the st.ates unless brought in the district of the residence of either the plaintiff or defendant, a complaint in such a case must show that either the plaintiff or defendant resides within the district in which the suit is brought, in order to overcome the adverse presumption, and that jurisdiction be affirmatively shown. Pirnmon8 v. Land Cb., 139 U. S. 378, 11 Sup. Ct. Rep. 585. It was held in Coal Co. v. Blatchford, 11 Wall. 172; that where the want of jurisdiction is made manifest by the affirmative averments of a bill the defect maybe taken advantage of by demurrer, No reason is perceived why the objection may not also be taken by demurrer where the want of jurisdiction is manifest because of the absence of aVf;Jrments necesBary to show jurisdiction. Demurrer sustained, with leave to plaintiffs to amend the complaint within 20 days, if they shall be so advised.
SUit, So far as .1113. ,is concerned, is not brought in the state of which he is a
Texas·.. Brit one of the plaintiffs is a citizen of the state of Arkansas. The
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(C«reuU Courc.D. New Hamp,Mre. Hay 10, 1_)
!t:nrOT.lL 01' CA.l1I1B!-CONDBJmATION PROCBBDllrGL
The rule of the New Hampshire supreme court, requiring llpeeiaI Fleu til pr0ceedings at law to be filed within 90 days from the commencement 0 the term at. which the action is entered, is applicable to railroad condemnation proceedings, and ther.efore, under the removal actl! of 1887 and 1888, such proceedings can only be removed before the expiration of that period.
.. BllIE-REMOVAL BY PLAINTIFF.
If, in condemnation proceedings, the landowner be regarded as plaintiff, (as lIeemB to be the rule of practice in New Hampshire,) then he hBll no right to remove al. any time, BlI a removal by plaintiff 18 not provided for in the removal acts of 1887 and 1888.
At Law. Proceeding to condemn lands. Heard on motion to mand to the state court. Sustained. W. & H. Heywood, Oliver E. Branch, and Harry G. Sargent, for appel· lants. Sanborn & Hardy and Frank S. Streeter, for appellee. ALDRICH, District Judge. The Mt. Washington Railway Company, a corporation existing and operating a railroad under the laws of New Hampshire, sought under the right of eminent domain to condemn for railroad purposes certain lands on the summit of Mt. Washington, supposed to be owned by Coe and Pingree. To this end a location was filed in the office of the secretary of state, and proceedings had before the railroad commissioners in accordance with the provisions of the statutes of New Hampshire. Under a statute which secures suoh right the landowners appealed to the supreme court for the southern district of the county of Coos, assigning as a reason that they were aggrieved by the appraisal of damages by the railroad commissioners. The appeal was entered in the office of the clerk of the supreme court on the 23d day of October, 1889, and the terms of such court are by law held in April and October of each year. The landowners, (Coe, a resident of Maine, and Pingree, a resident of Massachusetts,) on the 12th day of August, 1891, filed with the clerk of the state court a petition and bond in the usual form for removal of causes, and properly certified copies thereof were entered in the clerk's office of this court on the 8th day of October, 1891, and on the following day the corporation moved to remand to the state court, assigning three causes: (1) That the landowners are plaintiffs, and not defendants; (2) that the bond was not submitted to the state court for its approval; and (3) that the petition for removal was not filed in season. If the landowners sustained the relation of plaintiffs, and the party exercising the right of eminent domain that of defendant, as seems to be assumed in Rorer on Railroads, (426,) and in numerous cases cited in the notes, as well as in Chase v. Railroad Co.· 20 N. H. 195, and Boom Co. v. PaUersCYn, 98 U. S. 403, (and such assumption seems to have obtained in practice, at least, in New Hampshire,) then this proceeding should be remanded, as plaintiffs are clearly not within the removal