SBTRAS, District Judge.
This cause was originally brought in the district court of Floyd county, Iowa, whence it was removed to this court upon the application, of the defendant. The motion to remand filed on behalf of the plaintiff presents the question whether the removal was applied-for in time, and also whether a proper record had been filed in this court. > Those questions will not be considered, because upon the face of the record there appears another
*551LONEEGAN ¶. ILLINOIS CENT. E. CO. 551 objection, to entertaining jurisdiction, which, in the judgment of the court, is fatal thereto. The rule is well settled that, as the courts of the United Buhes are of limited jurisdiction, the presumption is against the jurisdiction, unless opon the face of the record the contrary affirmatively appears. Robertson v. Cease, 97 17. G. 64-6. it is furthermore required that the faei or facts upon which jurisdiction is sought to 'be founded skull be clearly and positively stated. In Brown t„ Keene, 8 Pet 115, it was said by Mr. Chief Justice Marshall, speaking for the court, dial “the decisions of this court require that the averments of jurisdiction shall be positive; the decía .ratio a shall state expressly she fact on which jurisdiction depends. It is not ¡vjiiíidení that jurisdiction may be inferred, argumentatively, from its averments.” And in Robertson v. Cease, supra, it is ruled that, “in cases where jurisdiction depends upon the citizenship of the parties, such, citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in ’the pleadings, or they should appear affirmatively, and with equal diotineíiiess, in other parts of the record.” This action being brought to recover damages for personal injurien caused to plaintiffs intestate, the only ground upon, which jurisdiction in the federal court could be based is Unit of the diverse citizenship of the parlies litigant. In the original and substituted petition tiled in the case It is averred that the defendant, the Illinois Con trail Kail road Company, is an incorporated company, organized and operating a railway in the state of Iowa. in. the pell turn for removal it Is averred that at the commencement of the suit, and ever since, the plaintiff was and Is a citizen of the state of Iowa, and iiiafc the defendant “was afe ike time of the commencement of this suit, and still is, a citizen of the state of Illinois.” In no part, of the record nor in the petition for removal is there an averna nt to the effect; that the defendant company is a corporation created wider the laws of ¡he state of Illinois. By the decisions of the supreme court in the cases of Bank v. Devoaux, 5 Oanch, 61; Bank \. Earle, 13 Pen 821; .Railroad Co. v. Leison, 2 How. 497" court="SCOTUS" date_filed="1844-03-15" href="https://app.midpage.ai/document/louisville-cincinnati--charleston-rail-road-v-letson-86293?utm_source=webapp" opinion_id="86293">2 How. 497; Marsh all v. Railroad Co., 16 Howl 314; Drawbridge Co. v. Ghepherd, 20 If gw. 232; Railroad Co. v. Wheeler, 1 Black, 286" court="SCOTUS" date_filed="1862-02-17" href="https://app.midpage.ai/document/ohio--mississippi-railroad-v-wheeler-87466?utm_source=webapp" opinion_id="87466">1 Black, 286; Muller v. Dows, 94 Ü. £1 444; and Chapman v„ .Barney, 129 IT. Í-1 677, 9 Bnp. Cfc. Ben. 426,--it is settled that a corporation lo not, strictly speaking, a citizen; and therefore, to sustain a suit by or against a corporation in ton federal courts, it is regarded as a, suit by or against ¡.lie stockholders of the corporation, and for jurisdictional purposes it is conclusively pmmmed that the stockholders are citizens of the state under whose laws the corporation is created. In other words, if it is averred in a given case that a corporation is created under the laws of a named state, the court will indulgí; in the legal presumption that all the stockholders are citizens of the named state, and that as citizens of such sbti e they may sue or be sued in the corporate name. The jurisdiction is based upon the assumed citizenship oí the stockholders; and to give rise to this legal assumption, it must be averred, and in case of contest it must be proved, of what state toe corporation is a creation. As already stated, it is not averred
*552in any part of the record in this canse that the defendant railway company is a corporation created under laws of the state of Illinois, or of any state other than Iowa, and therefore no facts are averred from which the court can draw the legal conclusion that the stockholders are citizens of Illinois, or of any state other than Iowa. The averment found in the petition for removal, that the defendant is a citizen of the state of Illinois, is not sufficient to justify the court in assuming that the company is an Illinois corporation.
Thus, in Insurance Co. v. French, 18 How. 404" court="SCOTUS" date_filed="1856-04-25" href="https://app.midpage.ai/document/the-lafayette-ins-co-v-french-87022?utm_source=webapp" opinion_id="87022">18 How. 404, the averment was that the plaintiffs, citizens of Ohio, complained “of the Lafayette Insurance Company, a citizen of the state of Indiana;” and it was held by the supreme court that “this averment is not sufficient to show jurisdiction. It does not appear from it that the Lafayette Insurance Company is a corporation, or, if it be such, by the law of what state it was created. The averment that the company is a citizen of the state of Indiana can have no sensible meaning attached to it. This court does not hold that either a voluntary association of persons, or an' association into a body politic, created by law, is a citizen of a state, within the meaning of the constitution.” The ruling thus made was cited and approved in the subsequent case of Muller v. Dows, 94 U.S. 444" court="SCOTUS" date_filed="1876-01-01" href="https://app.midpage.ai/document/muller-v-dows-2359388?utm_source=webapp" opinion_id="2359388">94 U. S. 444, in which case it was averred in the bill that the defendants, the Chicago & Southwestern Railway Company and the Chicago, Rock Island & Pacific Railroad Company, were citizens of the state of Iowa. The supreme court, speaking through Mr. Justice Strong, held that, “were this all that the pleadings exhibit of the citizenship of the parties, it would not be enough to give the circuit court jurisdiction of the case. In Insurance Co. v. French, 18 How. 404, a similar averment was held to be insufficient because it did not appear from it that the Lafayette Insurance Company was a corporation, or, if it was, that it did not appear by the law of what state it was made a corporation. * * * It is therefore necessary that it be made to appear that the artificial being was brought into existence by the law of some state other than that of which the adversary party is a citizen.” These decisions settle the proposition that the averment in the petition for removal, to the effect that the defendant railway company was when the suit was brought, and continued to be, a citizen of the state of Illinois, cannot be construed to be an averment that the company is a corporation, or that it was created such under the laws of the state of Illinois; and, unless these facts are made clearly to appear upon the record, the court cannot draw the legal conclusion that the stockholders are citizens of the state of Illinois. The other parts of the record do not supply this defect, but on the contrary it is averred in the original and substituted petitions that the Illinois Central Railroad Company is an incorporated company, organized and operating a railway in the state of Iowa, which averment certainly does not show that it is a corporation created under the laws of the state of Illinois. The record, therefore, fails to show that the controversy involved in the suit is one in which the adversary parties were when the suit was brought, and when the removal was *553sought, citizens of different states, and of necessity it must be held that this court cannot take jurisdiction thereof. The ease is therefore remanded to the state court, at cost of the defendant