C. H. Scribner, for plaintiffs in error.
No brief filed for defendants in error.
This was an action at law originally brought in the court of common pleas of Fulton county, Ohio, by John Swan, S.C.. Rose, F. M. Hutchinson, and Robert McMann, as partners under the name of Swan, Rose & Co., against the plaintiffs in error. The object of the suit was the recovery of damages for alleged breaches of a contract for the construction of the railroad of the defendants below. It was commenced June 10, 1874. Afterwards, on October 28, 1879, the cause being at issue, the defendants below filed a petition for its removal to the circuit court of the United States. They aver therein that one of the petitioners is a corporation created by the laws of Ohio alone, and the other, a corporation consolidated under the laws of Michigan and Ohio, the constituent corporations having been organized under the laws of those states respectively, and that they are, consequently, citizens, one of Ohio, and one of both Michigan and Ohio. It is also alleged, in the petition for removal, 'that the plaintiffs, John Swan and Frank M. Hutchinson, at the time of the commencement of this suit, were, and still are, citizens of the state of Pennsylvania; that the said Robert H. McMann was then (according to your petitioners' recollection) a citizen of the state of Ohio, but that he is not now a citizen of that state, but where he now resides or whereof he is now a citizen (except that he is a citizen of one of the states or territories comprising the United States) your petitioners are unable to state; that he went into bankruptcy in the bankruptcy court held at Cleveland, in the state of Ohio, several years since, and since the alleged claim of the plaintiffs arose, but your petitioners cannot now state whether he has now an assignee in bankruptcy or not, but they are informed and believe that he has not; that the said Stephen C. Rose, at the time of the commencement of this suit, was a citizen of the state of Michigan; that he died therein during the pendency of this suit, and the said Lester E. Rose is the administrator of the estate of the said Stephen C. Rose in the state of Michigan, he holding such office under and by virtue of the laws of that state only, the said Lester E. Rose being a citizen of the state of Michigan when so appointed and now, but that he is not a necessary party as plaintiff in this suit, for the reason that the suit being prosecuted by the plaintiffs as partners under the firm name and style of Swan, Rose & Co., and for the collection of an alleged debt or claim due to them as such partners, and which arose wholly out of their dealings as partners, if it exists at all, upon the death of the said Stephen C. Rose the cause of action survived to the other partners.' The petition, being accompanied with a satisfactory bond, was allowed, and an order made for the removal of the cause. The plaintiffs below afterwards, on December 13, 1879, moved to remand the cause on the ground, among others, that the circuit court had no jurisdiction, because the 'real and substantial controversy in the cause is between real and substantial parties who are citizens of the same state and not of different states.' But the motion was denied. Subsequently a trial took place upon the merits, which resulted in a verdict and judgment in favor of the plainfiffs, the defendants in error, for $238,116.18 against the defendants jointly, and the further sum of $116,468.32 against one of them. Many exceptions to the rulings of the court during the trial were taken, and are embodied in a bill of exceptions, on which errors have been assigned, and the writ of error is prosecuted by the defendants below to reverse this judgment.
An examination of the record, however, discloses that the circuit court had no jurisdiction to try the action, and as, for this reason, we are constrained to reverse the judgment, we have not deemed it within our province to consider any other questions involved in it. It appears from the petition for removal, and not otherwise by the record elsewhere, that, at the time the action was first brought in the state court, one of the plaintiffs, and a necessary party, McMann, was a citizen of Ohio, the same state of which the defendants were citizens. It does not affirmatively appear that at the time of the removal he was a citizen of any other state. The averment is that he was not then a citizen of Ohio, and that his actual citizenship was unknown, except that he was a citizen of one of the states or territories. It is consistent with this statement that he was not a citizen of any state. He may have been a citizen of a territory; and, if so, the requisite citizenship would not exist. New Orleans v. Winter, 1 Wheat. 91. According to the decision in Gibson v. Bruce, 108 U.S. 561, S.C.. 2 SUP. CT. REP. 873, the difference of citizenship on which the right of removal depends must have existed at the time when the suit was begun, as well as at the time of the removal; and, according to the uniform decisions of this court, the jurisdiction of the circuit court fails, unless the necessary citizenship affirmatively appears in the pleadings or elsewhere in the record. Grace v. American Cent. Ins. Co. 109 U.S. 278-283; S.C.. 3 SUP. CT. REP. 207; Robertson v. Cease, 97 U.S. 646. It was error, therefore, in the circuit court to assume jurisdiction in the case, and not to remand it, on the motion of the plaintiffs below.
It is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it, and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. This rule was adopted in Capron v. Van Noorden, 2 Cranch, 126, decided in 1804, where a judgment was reversed on the application of the party against whom it had been rendered in the circuit court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which he had invoked. This case was cited with approval by Chief Justice MARSHALL in Brown v. Keene, 8 Pet. 112.