THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Indiana.
On the 18th of March, 1857, Hiram Clearwater, a citizen of Ohio, brought a suit against Johnson, Meredith, and Tyner, citizens of Indiana; and in the declaration said, that the 'defendants, together with one Caleb B. Smith, who, at the time of the commencement of this suit, was not a citizen of the State of Indiana, and is therefore not joined as a defendant herein, made and delivered to the plaintiff their certain written agreement,' &c., &c.
The cause of action was a written agreement, signed by the four persons above named, guarantying that the stock in a railroad company should be at par within a certain time, in consideration that Clearwater had executed a deed of conveyance of land to Meredith, (to whom the same had been sold by the company,) Clearwater having previously contracted to sell it to the company.
The three defendants named in the caption appeared and filed the following demurrer:
'The said defendants, by counsel, come and say the declaration of the said plaintiff, and the several counts therein contained, are severally insufficient in law to enable said plaintiff to have and maintain his action against said defendants, and for cause of demurrer shows to the court the following:
'1 The jurisdiction of the court is not shown by proper averment.
'2. No sufficient consideration is shown for the undertaking.
'3. The several counts do not contain facts sufficient to constitute a cause of action.'This demurrer was sustained by the court below, and a writ of error brought this ruling before this court.
It was argued by Mr. Pugh for the plaintiff in error, and Mr. Thompson for the defendants.
With respect to the first ground of demurrer, Mr. Pugh contended that the non-joinder of Smith was excused by the first section of the act approved February 28, 1839, (5 Stat. at L., 321, 322; 14 Peters, 60;) and, moreover, the omission should have been pleaded in abatement. It was not a ground of demurrer. With respect to the other two grounds, the conveyance of the land to Meredith was a sufficient consideration for the promise of the defendants.
Mr. Thompson contended that the omission was fatal, inasmuch as the declaration does not show a case of which the Circuit Court had jurisdiction. The rule is this: that when there are two or more plaintiffs or defendants, each of the plaintiffs must be capable of suing, and each of the defendants of being sued, in order to support the jurisdiction. Bank of Vicksburg v. Slocomb et al., (14 Pet., 64,) where this interpretation is given to the act of February 28, 1839. (5 U.S. Stat., 321.) The declaration here should show that Smith is a citizen of a different State from the plaintiff; for, in the Federal courts, jurisdiction must be shown. If it is not shown, the objection is fatal, at any stage of the case. It needs no plea. And this is the ground, evidently, upon which the demurrer was sustained below.
Mr. Justice McLEAN delivered the opinion of the court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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