Denny v. Pironi

after stating the case, delivered the opinion of the court.

. The only averment of the plaintiffs’ citizenship appearing in the record prior to the remittitur is contained in the first allegation of the petition, that “ the petitioners, who are hereinafter styled plaintiffs, are and were at the times of the accrual of the causes of action hereinafter stated, a mercantile firm, composed as aforesaid, engaged in the wholesale wine and liquor business in the city and county of Los Angeles, California, where both of said plaintiffs also reside.” That an averment of residence is not the equivalent of an averment of citizenship, and is insufficient to give the Circuit Court jurisdiction, has been settled in a multitude of cases in this court: *124 Parker v. Overman, 18 How. 137; Robertson v. Cease, 97 U. S. 646 Everhart v. Huntsville College, 120 U. S. 223; Menard v. Goggan, 121 U. S. 253; and in case of a defective averment in this particular the judgment will be reversed by this court upon its own motion, and the case remanded; Peper v. Fordyce, 119 U. S. 469; Everhart v. Huntsville College, 120 U. S. 223; Menard v. Goggan, 121 U. S. 253. A case cannot.be amended here so as to show jurisdiction, but the court below, in its discretion, may allow it to be done where the suit was instituted in the Circuit Court; Continental Insurance Company v. Rhoads, 119 U. S. 237; Halsted v. Buster, 119 U. S. 341.

This judgment then depends for its validity wholly upon the question whether the mere recital of the citizenship of the parties in the remittitur is such an incorporation. of the same into the record as obviates the objection to the original petition and supports the judgment. It has been repeatedly held that it was not necessary for the averment to appear in the pleadings, but that the statute was complied with if it appeared in any part of the record. Thus in Railway Company v. Ramsey, 22 Wall. 322, 328, which was a case removed from a state court, the averment of citizenship did not appear in the pleadings, but the parties, by stipulation and agreement placed on file, and made part of the record, admitted that the cause was brought into the Circuit Court by transfer from the state court in accordance with the statutes in such case provided. By the same stipulation it was made to appear that all the original files in the cause had been destroyed by fire. The court held that, while consent of parties cannot give the courts of the United States jurisdiction, they may admit facts which show jurisdiction, and the courts may act judicially upon such admission, and that it would be presumed that the petition for removal stated facts sufficient to entitle the party to have the transfer made. Said the Chief Justice, speaking for the court: “As. both the court and the parties accepted the transfer, it, cannot for a moment be doubted that the files did then contain conclusive evidence of the existence of the jurisdictional facts.” In Briges v. Sperry, 95 U. S. 401, the bill showed no *125 jurisdiction in the Circuit Court; but as the proceedings iff the state court* which were held to be properly part of the record, showed that the case was removed from the state court to the Federal court on account of the citizenship of the parties, the jurisdiction was sustained. The same ruling was made in Steamship Company v. Tugman, 106 U. S. 118. In Bondurant v. Watson, 103 U, S. 281, the record showed that the husband of the original defendant, of whose will she was the executrix, was at the time of his death, and for many years before had been, a citizen of Mississippi, and the court held that it necessarily followed that the defendant was a citizen of such. State at the time of her husband’s death, which took place before the filing of the petition in the case, and that as it also appeared thát she was a citizen of the same State at the -time of the , commencement of the suit against her, the jurisdiction should be sustained.

While these cases settle the principle that it is not necessary that the essential facts shall be averred' in the pleadings, they show that/they must appear in such papers as properly constitute the record ■ upon which judgment is entered, and not in averments which are improperly and surreptitiously introduced into the record for the purpose of healing a defect in this particular. Thus in Robertson v. Cease, 97 U. S. 646, it was claimed by counsel to be apparent, or to be fairly inferred from certain documents or papers copied into the transcript, that the plaintiff was at the time of the commencement of the action, a citizen of Illinois. Among these documents was a notice of an application for a commission to examine witnesses, among whom was the plaintiff, described as residing in th'p county of Mason, State of Illinois; and there was a deposition of his, which began as follows: “ My name is Henry Cease; residence, Mason County, Illinois.” Under the doctrine of the cases before cited it was contended that the citizenship of Cease was satisfactorily shown by these documents, which it was insisted were a part of the record. “ But,” said the court, “ 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 *126 ascertain the citizenship of the 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 have 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.”

In the case under consideration, the remittitur formed no proper part of the judgment record, and the recital of citizenship formed no proper part of the remittitur. Undoubtedly proceedings subsequent to • the judgment are admissible tó show what action has been taken upon such judgment, as for instance, that it has been vacated, stayed, amended, modified or paid, that execution has been issued upon it, or that a part of it has been remitted, but such proceedings cannot be introduced to validate a judgment void for the want of jurisdiction. Not only is the remittitur in this case open to this objection, but it appears upon its face not to have been filed in good faith, but for the sole purpose of introducing the averment of citizenship; in other words this averment is the object, and the remittitur the incident. Remittiturs are used where the judgment has been accidentally entered for a larger amount than was due, or occasionally to forestall an appeal: Pacific Express Company v. Malin, 132 U. S. 531, but never to give jurisdiction where it is not otherwise shown. As well might it be contended that the difficulty could be surmounted by filing an affidavit subsequent to judgment. In either case it would be impossible for the defendant to take issue upon it, or to submit it to the court or jury as upon a plea in abatement.

■ . The judgment of the court below must be reversed, and the case remanded for further proceedings not inconsistent with this opinion.