EVERHART v. HUNTSVILLE FEMALE COLLEGE and others. CLAY, Adm'r, etc., v. SAME.

120 U.S. 223 (7 S.Ct. 555, 30 L.Ed. 623)

EVERHART v. HUNTSVILLE FEMALE COLLEGE and others. CLAY, Adm'r, etc., v. SAME.

Decided: January 31, 1887

Milton Humes and John T. Morgan, for Everhart.

S. F. Rice, for Clay, Adm'r. D. D. Shelby, L. P. Walker, and John D. Brandon, for Female College.

WAITE, C. J.

These are appeals from a decree dismissing the original bill and a cross-bill in a suit begun in the circuit court of the United States for the Northern district of Alabama, by george M. Everhart against the Huntsville Female Academy, George W. F. Price, Martha T. Rison, Myra J. Erwin, Robert M. Erwin, William H. Erwin, Joseph B. Erwin, and Marcus A. Erwin, and in which Hugh L. Clay, as administrator de bonis non of Abraham R. Erwin, deceased, was afterwards added as a defendant; but, on looking into the record, we find no sufficient evidence of the jurisdiction of the circuit court, which depends alone on the citizenship of the parties. It is stated in the original bill that Everhart is a resident of Wisconsin, and the same fact is also shown by the testimony; but this, as it has often been held, is not enough. An averment of residence is not the equivalent of an averment of citizenship for the purposes of jurisdiction in the courts of the United States. Accordig to the pleadings, the Huntsville Female Academy is an Alabama corporation, and the other defendants are residents of either Alabama or Tennessee. The decree dismissing both the original and cross-bills is reversed, because the record fails to show the jurisdiction of the circuit court; but, as the fault rests alone on Everhart, the complainant in the original bill, whose duty it was to put on record the facts necessary to show the jurisdiction, the reversal will be at his costs in this court. This whole subject has already been considered twice during the present term,—once in Continental Ins. Co. v. Rhoads, 119 U. S. 237, ante, 193; and again in Peper v. Fordyce, 119 U. S. 469, ante, 287. The reasons for our judgment sufficiently appear in the opinions delivered in those cases. If, on the return of the case to the circuit court, it is made to appear that the citizenship necessary for the jurisdiction existed at the time the suit was brought, it will be for that court to determine whether an amendment of the pleadings ought to be allowed, so as to cure the present defects.

The decree of the circuit court is reversed, at the costs of the appellant Everhart, and the cause remanded for further proceedings not inconsistent with this opinion.

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