TEXACO-CITIES SERVICE PIPE LINE COMPANY AND CLELL HEDGPETH AND FRANK STEWART, D/B/A HEDGPETH AND STEWART, APPELLANTS,
v.
AETNA CASUALTY & SURETY COMPANY, APPELLEE
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The court held that allegations of residence are insufficient to establish diversity jurisdiction, but defective allegations may be amended.
The amended complaint alleged the defendants were residents of Missouri, not their citizenship, which is required for diversity jurisdiction. The amou…
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PER CURIAM.
This is an appeal from a judgment for the appellee, a third party defendant in the District Court, in what purports to be a diversity case. We kre concerned with the question of jurisdiction. A federal appellate court in a case under review must satisfy itself not only of its own jurisdiction, but also of that of the District Court. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338; Illinois Terminal R. Co. v. Friedman, 8 Cir., 208 F. 2d 675, 676; Kern v. Standard Oil Company, 8 Cir., 228 F. 2d 699, 701 and cases cited. See, also, Rule 12(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. It is diversity of citizenship and not diversity of residence which gives a federal court jurisdiction in a case where the requisite jurisdictional amount is in controversy. 28 U.S.C. § 1332.
In this case it appears from the amended complaint, filed May 27, 1958, that the plaintiff, Texaco-Cities Service Pipe Line Company (an appellant), is a Delaware corporation “and that defendants, Clell Hedgpeth and Frank Stewart, are residents of Christian County, Missouri,” and that $10,000 is in controversy.
“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.” Everhart v. Huntsville College, 120 U.S. 223, 7 S.Ct. 555, 30 L.Ed. 623; Shafer v. Children’s Hospital Soc. of Los Angeles, Cal., 105 U.S.App.D.C. 123, 265 F. 2d 107, 121; Padbury v. Dairymen’s League Cooperative Ass’n, Inc., D.C.M. D.Pa., 119 F.Supp. 738. Allegations of jurisdiction which are defective should be discovered and corrected in the District Court.
Section 1653, Title 28 U.S.C., provides: “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”
The appellants are granted twenty days in which to amend their pleadings to show that, in fact, diversity jurisdiction did exist. If jurisdiction is established, the case will be decided on the merits without further argument; otherwise it will be remanded for dismissal.
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Rock Island Millwork Co. & Wholesale Distrib. Co. v. Hedges-Gough Lumber Co., 337 F.2d 24 (8th Cir. 1964)
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Delome v. Union Barge Line Co., 444 F.2d 225 (5th Cir. 1971)
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Nat'l Farmers Union Prop. & Cas. Co. v. Fisher, 284 F.2d 421 (8th Cir. 1960)
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mitchell v. Maurer, 293 U.S. 237 (U.S. 1934)
- King Bridge Co. v. Otoe Cnty., 120 U.S. 225 (U.S. 1887)
- Kern v. Standard OIL Co., 228 F.2d 699 (8th Cir. 1956)
- Everhart v. Huntsville Coll., 120 U.S. 223 (U.S. 1887)
- Ill. Terminal R. Co. v. Friedman, 208 F.2d 675 (8th Cir. 1953)
- Purdue Research Found. v. Watson, 265 F.2d 107 (D.C. Cir. 1959)