MORGAN'S EXECUTOR
v.
GAY
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An assignee of bills of exchange brought suit in federal circuit court against a defendant from Louisiana, but the plaintiff failed to establish in the pleadings that all parties in the chain of indorsement were citizens of different states, which was required to give the federal court jurisdiction over the dispute. The Supreme Court reversed the judgment and remanded the case, holding that when an action on negotiable instruments is brought in federal court, the citizenship of not only the parties to the suit but also all payees and indorsers must be averred to establish federal jurisdiction, and further noting that the trial court erred in deciding factual issues without a jury and without the defendant's consent.
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Mr. Justice STRONG delivered the opinion of the court.
The plaintiff is an assignee of the bills within the meaning of the eleventh section of the Judiciary Act of 1789, and by tbe express provisions of the section is not entitled to maintain his action in the Circuit Court, unless a suit might have been prosecuted in such court to recover the contents of the bills if no assignment had been made. But the petition does not show that the indorsers through whom the plaintiff claims were not citizens of Louisiana at the time the suit was brought. It is true, the citizenship of the defendant is averred to have been in Louisiana, and that of the plaintiff' in Kentucky, but there is no averment of the citizenship of the payees of the bills, or of the citizenship of the subsequent indorsers. For aught that appears in the record, they .may also be citizens of Louisiana; and, therefore, incapable of suing in the Circuit Court for that district to recover the contents of the bills. As that court has only a limited jurisdiction, it must appear affirmatively that it may take cognizance of the controversy between the parties.* In Turner v. The Bank of North America,† it was distinctly ruled that when au action upon a promissory note is brought in a Federal court by an indorser against the maker, not only the parties to the suit, but also the citizenship of the payee, and the indorser, must be averred in the record to be such as to give the court jurisdiction. The same rule was asserted in Montalet v. Murray, ‡ in Mollan v. Torrance, § and in Gibson et al. v. Chew. ǁ The judgment must, therefoi'e, be reversed, and the cause sent back that amendment may be made in the pleadings showing the citizenship of the indorser of the bills, if it be such as to give the court jurisdiction of the case.
We may notice another error which will doubtless be avoided should there be a second trial. Issues of fact appear to have been made up which were determined by the court in the absence of the defendant’s counsel, and without any written agreement to waive a jury trial. This was irregular. In the absence of such an agreement, and of the defendant’s counsel, it was not competent for the court to try the issue without the intervention of a jury.¶
Judgment reversed, and the cause remanded for further proceedings,
In accordance with this opinion.
* Turner v. Enrille, 4 Dallas, 7.
* * * * *
‡
§
9 Wheaton, 537.
ǁ 16 Peters, 315.
¶ Kearney v. Case, 12 Wallace, 275.
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Citator
Cited By (12 total)
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Souffront v. La Compagnie Des Sucreries de Porto RICO, 217 U.S. 475 (U.S. 1910)
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Robertson v. Cease, 97 U.S. 646 (U.S. 1878)…iling of the original petition, and not upon the time which had elapsed previous to the amendment. The allowance of such an amendment, under the circumstances of this case, is sustained by the former practice of this court. In Morgan's Ex'rs v. Gay (19 Wall. 81), the judgment of the court below was reversed, because it did not affirmatively appear that the citizenship of the parties was [*651] such as to give it jurisdiction; and the cause was sent back, “ that amendment may be made in the pleadings, showi…
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Cont'l Ins. Co. v. Rhoads, 119 U.S. 237 (U.S. 1886)…ra. If the plaintiff was actually a citizen of Pennsylvania when the suit "was begun, the record cannot be amended here so as to show that fact, but the court below .may, in its discretion, allow it to be done when the case gets back. Morgan v. Gay, 19 Wall. 81; Robertson v. Cease, supra. It is not necessary to consider any of the other assignments of error. The judgment of the Ci/rcuit Co%t,rt is reversed and the cause remanded for further proceedings.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mollan and others v. Torrance, 9 Wheat. 537 (U.S. 1824)
- Montalet v. Murray, 4 Cranch 46 (U.S. 1807)
- Gibson v. Chew, 16 Pet. 315 (U.S. 1842)