STEVENS v. NICHOLS.

130 U.S. 230 (9 S.Ct. 518, 32 L.Ed. 914)

STEVENS v. NICHOLS.

Decided: April 1, 1889

James Carr and A. H. Garland, for plaintiff in error.

G. P. B. Jackson, for defendant in error.

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Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

1. It was held in Robertson v. Cease, 97 U.S. 646, 649, upon writ of error from a circuit court of the United States, 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 distinctness in other parts of the record.' Railway Co. v. Swan, 111 U. S. 379, 382, 4 Sup. Ct. Rep. 510; Hancock v. Holbrook, 112 U. S. 231, 5 Sup. Ct. Rep. 115; Thayer v. Association, 112 U. S. 719, 5 Sup. Ct. Rep. 355; Insurance Co. v. Rhoads, 119 U. S. 239, 7 Sup. Ct. Rep. 193.

2. The case was not removable from the state court, unless it appeared affirmatively in the petition for removal, or elsewhere in the record, that at the commencement of the action, as well as when the removal was asked, Stevens and Mirick were citizens of some other state than the one of which the plaintiff was, at those respective dates, a citizen. Gibson v. Bruce, 108 U. S. 562, 2 Sup. Ct. Rep. 873; Railroad Co. v. Shirley, 111 U. S. 358, 360, 4 Sup. Ct. Rep. 472; Railway Co. v. Swan, 111 U. S. 379, 381, 4 Sup. Ct. Rep. 510; Akers v. Akers, 117 U. S. 197, 6 Sup. Ct. Rep. 669.

3. The petition for removal does not allege the citizenship of the parties except at the date when it was filed, and it is not shown elsewhere in the record that Stevens and Mirick were, at the commencement of the action, citizens of a state other than the one of which the plaintiff was, at that date, a citizen. The court, therefore, cannot consider the merits of the case. Metcalf v. Watertown, 128 U. S. 586, ante, 173; Morris v. Gilmer, 129 U. S. 315, 325, ante, 289.

The judgment is reversed upon the ground that it does not appear that the circuit court had jurisdiction, and the case is remanded to that court, with directions to send it back to the state court, the plaintiff in error to pay the costs in this court and in the court below. Railway Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. Rep. 510. Reversed.

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