159 F. 58 | 5th Cir. | 1908
(after stating the facts as above). In the-Circuit Court of the United States for the Western District, an action at law is commenced by petition filed in the office of the clerk. See article 1177, Rev. St. Tex., 1895. The statutes of the United States are silent as to any particular place in that district for the clerk’s office to be located except the provision in the act of June 3, 1884, c. 64, 23 Stat. 36 [U. S. Comp. St. 1901, p. 428], “that there shall be appointed in the manner provided by law a deputy clerk who shall keep his office in the city of El Paso,” and except the provision in Act June 9, 1906, c. 3063, 34 Stat. 226 [U. S. Comp. St. Supp. 1907, p. 169),. that the clerk of the Circuit Court shall maintain an office at Del Rio to be kept open at all times for transaction of business. As a matter of fact, the clerk, under the approval if not actual order of the court, keeps and maintains-an office in the principal place in the district
It follows that the plaintiffs properly commenced their suit by filing their petition with the clerk. After the suit was commenced it was the privilege of the defendant to have the process made returnable at San Antonio, that being the place fixed by law for the return of process issued against the defendants residing in Bexar county. Act March 11, 1902, c. 383, § 9, 32 Stat. 87 [U. S. Comp. St. Supp. 1907, p. 162], The defendant could have waived this privilege, and the jurisdiction to proceed with the case would have been unquestionable, but, as he insisted upon it, the court properly allowed it. On allowance of the privilege sufficient relief would have been furnished by quashing the process with costs, and directing other and legal process issued, and we doubt whether, without some further putting the plaintiffs in. default, the court was justified in going further and peremptorily dismissing the suit.
In 1883 a similar case arose in the Circuit Court for the Northern District of Texas under Act Feb. 24, 1879, c. 97, 20 Stat. 318 [U. S. Comp. St. 3901, p. 422], and was heard before the Circuit and District Judges sitting together. The court held that the question involved related only to defective process, and was not jurisdictional, therefore the suit should not be dismissed, but be transferred to the proper division for return of process and for trial. This case is not reported, but the writer hereof well recollects the case and the protracted and elaborate argument therein, and, as Judge McCormick was a member of the court and concurred in the decision, we think it a sufficient precedent, in connection with the reasoning in this present case, to warrant us in resolving the above-mentioned doubt in plaintiff’s favor.
There is a jurisdictional question, however, arising on the face of the record which seems to be fatal to the plaintiffs’ right to maintain this suit, unless proper amendment be made. In the plaintiffs’ original petition it is alleged that all of them reside in the Republic of Mexico, but we find no averment in the record that they are citizens of the Republic of Mexico. The recital in the motion for a rehearing “that it appears on the face of the defendant’s pleadings that” the plaintiff “is a resident citizen of the Republic of Mexico,” even if true in fact, did not cure the defect. The plaintiff referred to and described therein was the liquidating committee of the International Bank & Trust Company of America, and not the individuals who are the real plaintiffs in the suit. The jurisdiction of the court depends upon diverse citizenship, and it should be affirmatively shown in the record. See Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057, and Stuart v. Easton, 156 U. S. 46, 15 Sup. Ct. 268, 39 L. Ed. 341, and cases there cited.
The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to dismiss the suit for want of jurisdiction unless the plaintiffs shall in reasonable time make proper amendment showing jurisdiction, in which case an order quashing process and
