THE Gaylords, appellants here, had filed their bill in chancery in the Circuit Court for the District of Indiana, against the defendants Kelshaw and Butterworth, charging that they had an unsatisfied judgment at law in one of the Indiana courts against Kelshaw, and that some short time before the judgment was recovered, Kelshaw conveyed to Butterworth a valuable piece of real estate without any consideration; and with an intent fraudulently to hinder and delay them, the said Gaylords, in the collection of their debt. The bill prayed that the conveyance might be aside, and the property sold in satisfaction of their debt.
The complainants alleged themselves to be citizens of Ohio, and Butterworth to be a citizen of Indiana, but no allegation was made in any part of the record as to the citizenship of Kelshaw. The record showed, however, that he was found within the district, and had appeared and answered. The court below dismissed the bill on merits.
Coming here, the case was argued by Mr. Henderson for the complainants, who asked a reversal on merits, which he argued had been misunderstood below, and by Messrs. Ketcham and Dunn, contra. The arguments need not be given, since the court considered the question not a question of merits but one
1. Whether, there being no allegation of Kelshaw's citizenship, jurisdiction existed under that clause of the Judiciary Act which gives the Federal courts jurisdiction in suits between citizens of different States? and,
2. If jurisdiction did not exist, what was proper to be done; that is to say, whether the decree was to be reversed, or the bill dismissed, or the case remanded with directions, &c.?
Mr. Justice MILLER, after stating the case, delivered the opinion of the court:
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