Atchison, T. & S. F. Ry. Co. v. Frederickson

177 F. 206 | 9th Cir. | 1910

GILBERT, Circuit Judge.

The plaintiff in error raises in this court for the first time the question of the jurisdiction of the Circuit Court. There was no ground of jurisdiction other than diversity of the citizenship of the parties, and the only allegation as to the citizenship of the defendant in error was that “he is an inhabitant of the city of Los Angeles, in the county of Los Angeles, state of California.” On the witness stand he testified that his “home” was in Detroit, Mich. To allege that one is an inhabitant is not to allege that he is a citizen. United States v. Rhodes, 1 Abb. U. S- 39, Fed. Cas. No. 16,151. It is equivalent only to saying that he is a resident. “It has ,long been settled,” said Mr. Justice Harlan, “that residence and citizenship are wholly different things, within the meaning of the Constitution and the laws defining and regulating the jurisdiction of the Circuit Courts of the United States, and that a mere averment of residence in a particular state is not an averment of citizenship in that state for the purpose of jurisdiction.” Steigleder v. McQueston, 198 U. S. 141, 25 Sup. Ct. 616, 49 L. Ed. 986, citing Parker v. Overman, 18 How. 137, 15 L. Ed. 318; Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057; Everhart v. Huntsville College, 120 U. S. 223, 7 Sup. Ct. 555, 30 L. Ed. 623; Timmons v. Elyton Land Co.. 139 U. S. 378, 11 Sup. Ct. 585, 35 L. Ed. 195; Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966, 35 L. Ed. 657; Wolfe v. Hartford L. & A. Ins. Co., 148 U. S. 389, 13 Sup. Ct. 602, 37 L. Ed. 493.

Absence of sufficient averments of diversity of citizenship, or of facts in the record showing such diversity, is fatal; and the defect cannot be waived by the parties, nor can tlieir consent confer jurisdiction. Thomas v. Board of Trustees, 195 U. S. 207, 25 Sup. Ct. 24, 49 L. Ed. 160.

It follows that the judgment must be reversed, and the cause remanded to the Circuit Court, with instructions to dismiss the same.