after making the foregoing state- . ment, delivered the opinion of the court.
This case is brought directly from the Circuit Court to this court under the first subdivision of the fifth section of the judiciary act of March 3, 1891, providing that that may be done: “ In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be cеrtified to the Supreme Court from the court below for decision.” It must be regarded as settled that the jurisdiction here referred to is the jurisdiction of the Circuit or District Courts of the United States as such,
Smith
v.
McKay,
Counsel for plaintiff in error condenses the propositions relied on into these : (1) That “ the citizenshiр of the ward, the actual plaintiff, not that of the guardian, the nominal plaintiff, controls ; ” (2) that “ the laws of Mexico as pleaded and proved and which are relied on to support this case aré so vague and indefinite and so dissimilar to the laws of Texas as to be incapable of enforcement in our courts, and are inconsistent with the statutes and public policy of Texas and (3) that these laws “ are penal in their character and such as should be given no extraterritorial effect.”
But apart from the question of jurisdiction in respect of citizenship, it is apparent that the jurisdiction of the Circuit Court as a court of the United States was not put in issue, for the other contentions were matters on the merits, and this judgment to the contrary is not void but is only open to be attacked for error, while, in any asрect, the objections applied to all courts of this country and not particularly to the Federal courts.
*433
And if the jurisdiction of the Circuit Court was invoked solely оn the ground of diverse citizenship, the case.should have been taken to the Circuit Court of Appeals for the Fifth Circuit, to which court previous similar cases havе been carried, and by which the questions suggested here have been dealt with.
Evey
v.
Mexican National Railway Company,
52 U. S. App. 118;
Mexican National Railway Company
v. Marshall,
These matters, however, are not properly before us in this case, and we intimatе no opinion upon them.
The question for us to determine is whether the jurisdiction of the Circuit Court can be sustained through the citizenship of the guardian.
It is admitted that Eckman was duly appointed guardian of both the person and estate of Huesselmann by the proper court of Texas thereto empowered, and that he was a citizen and resident of the Western District of Texas.
Under the act of March 3, 1887, c. 373, as corrected by that of August 13, 1888, c. 866, actions may be brought in any district in which either the plаintiff or the defendant resides. We have held that a corporation incorporated in one State only cannot be compelled to answer in a Cirсuit Court of the United States held in another State, to a civil suit, at law or in equity, brought by a citizen of a different State.”
Shaw
v.
Quincy Mining
Company,
The question is whether under the laws of Texas a guardian can sue in his own name to recover damages for injuries sustained by the ward, and it is unaffected by the permanent domicil of the ward.
Hoyt
v.
Sprague,
It is true that where a State or one of its officials is a mere figurehead, a nominal party, to a suit on a sheriff’s or administrator’s bond, or an action is instituted in the name of a United States marshal on an attachment bond, the real party in interest is taken into account on the question of citizenship, not *434 withstanding the general rule that the jurisdiction of the Federal courts depends, not on the relative situation of the parties сoncerned in interest, but on the relative situation of the parties named in the record. But those are instances of merely formal parties, whose names- are used from' necessity, and, as said in New Orleans v. Gaines’ Administrator, by Mr. Justice Bradley, “ we have repeatedly held that representatives may stand upon their own citizenship in the Federal courts irrespectively of the citizenship of the persons whom they represent, — such as executors, administrators, guardians, trustees, receivers, etc. The evil which thе law was intended to obviate was the, voluntary creation of Federal jurisdiction by simulated assignments. But assignments by operation of law, creating legal representatives, are. not within the mischief or reason of the law.”
If in the State of the forum the general guardian has the. right to bring suit in his own name as such guardian, and does so, he is to bе treated as the party plaintiff so far as Federal jurisdiction is concerned, even though suit might have been instituted in the name of the ward by guardian ad litem or next friend. He is liable for costs in the event- of failure to recover and for attorneys’ fee's to those he employs to bring the suit, and in the event of success, the amount recоvered must be held for disposal according to law, and if he does not pay the same over to the parties entitled, he would be liable therefor on his official bond.
The Revised Statutes of Texas provide, Sayles’ Civ. Stat. of 1897:
“ Aet. 2623. The guardian of the estate is entitled to the possession and management of all proрerty belonging to the ward; to collect all debts, rents, or claims due such ward ; to enforce all obligations in his favor; to bring and defend suits by or against him ; but in the management of-the estate the guardian shall be governed by the provisions of this title.
“ Aet. 2624. The guardian of both person and estate has all the rights and powers, and shall perform all the duties of the guardian of the person and of the guardian of the estate.”
“ Aet. 2627. The guardian of the estate shall use due diligence to collect all clаims or debts owing to the ward, and to *435 recover possession of all property to which, the ward has a title or claim; provided, there is a reasonable prospect of.collecting such claims or debts, or of recovering such property; and if he neglects to use such diligence he and his sureties shall be liablе for all damages occasioned by such neglect.”
In
Roberts
v.
Sacra,
Guardian,
In
Houston & Texas Central Railway Company
v.
Bradley, Guardian,
And see
March
v.
Walker, Guardian,
We are unable to hold that the Circuit Court erred in assuming that this guardian had the legal right to bring the action in his own name, and it is on his citizenship and not on the citizenship of the ward that the jurisdiction of the Circuit Court depended.
Judgment affirmed.