KING IRON BRIDGE & MANUF'G CO. v. COUNTY OF OTOE.

120 U.S. 225 (7 S.Ct. 552, 30 L.Ed. 623)

KING IRON BRIDGE & MANUF'G CO. v. COUNTY OF OTOE.1

Decided: January 31, 1887

This action was brought November 10, 1885, by the King Iron Bridge & Manufacturing Company, a corporation of Ohio, against Otoe county, in the state of Nebraska, to recover the amount of two county warrants or orders, each signed by the chairman of the county commissioners of the county, and countersigned by the county clerk. One was dated October 9, 1878, and directed the 'treasurer of Otoe county to pay to Z. King or order sixteen hundred and five dollars, and charge to account of special bridge funds;' and the other dated January 9, 1879, directed the 'treasurer of Otoe county to pay to Z. King sixteen hundred and five dollars, and charge to account of special bridge fund.' The first one being presented for payment on the twenty-third of October, 1878, was indorsed by the treasurer, 'Presented, and not paid for want of funds.' The other was presented on the fifteenth of January, 1879, and received a like indorsement. The petition states, in respect of each warrant, that it had been, for a valuable consideration, 'sold, transferred, and delivered' by Z. King to the plaintiff, who sues as the holder and owner thereof. Judgment was asked for $3,210, with 10 per cent. interest on $1,605 thereof from October 23, 1878, and for $1,605, with like interest from January 15, 1879. The defense was the limitation of five years prescribed by the local law for an action 'upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment.' The court below overruled a demurrer to the answer, and dismissed the action.

N. S. Narwood and J. H. Ames, for plaintiff in error.

John C. Watson, for defendant in error.

HARLAN, J.

This case was argued upon the question of limitation. But we have no occasion to consider that question; for it does not appear that the circuit court had jurisdiction of the action. Unless the contrary appears affirmatively from the record, the presumption, upon writ of error or appeal, is that the court below was without jurisdiction. Robertson v. Cease, 97 U. S. 646; Grace v. American Cent. Ins. Co., 109 U. S. 283, 3 Sup. Ct. Rep. 207; Bors v. Preston, 111 U. S. 252, 4 Sup. Ct. Rep. 407. That the point as to jurisdiction was not made here by either party is immaterial, because, as said in Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 382, 4 Sup. Ct. Rep. 510, 'the rule, springing FROM THE NATURE AND LIMITS OF THE JUDICIal power of the united states, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction,—first of this court, and then of the court from which the record comes.' See, also, Hancock v. Holbrook, 112 U. S. 231, 5 Sup. Ct. Rep. 115. The act of March 3, 1875, (section 1,) excludes from the cognizance of a circuit or district court of the United States 'any suit founded on contract in fv or of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes, negotiable by the law-merchant, and bills of exchange.' One of the warrants is payable to Z. King and the other to Z. King or order. The latter is not indorsed by him in blank or to the order of the plaintiff. Plainly, therefore, upon any view of the statute, the plaintiff, as the holder or owner of the warrants, could not maintain a suit in the court below, unless King could have sued in that court, had he not sold the warrants. But it does not appear that King could have maintained the suit. There is no averment as to his citizenship, nor does his citizenship otherwise appear from the record. We must therefore presume, on this writ of error, that the circuit court was without jurisdiction.

It will be for the court below to determine whether an amendment of the pleadings upon the point of jurisdiction will be proper.

The plaintiff in error must pay the costs in this court. Reversed.

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1

Reversing 27 Fed. Rep. 800.