ERROR to the Circuit Court for the Northern District of Illinois; the case being thus: Several statutes authorize, as is known, the transfer or removal of causes, commenced in the State courts, to those of the United States.
The opinion of the court was delivered by: As early as Bingham v. Cabot,*fn2 and the short cases of Abercrombie v. Dupuis,*fn3 and Wood v. Wagnon,*fn4 the necessity of averment of citizenship, as an indispensable prerequisite to the maintenance of jurisdiction, was announced, and Marshall, C. J., in Brown v. Keene,*fn5 said:
First. Where the amount in dispute, exclusive of costs, exceeds $500, and when the suit is against an alien, or is by a citizen of the State where it is brought, and against a citizen of another State, it may be removed on the petition of the defendant filed in the case, in the State court, at the time of entering his appearance in said court.*fn1
Second. When the suit is against an alien, and a citizen of the State wherein it is brought, or is by a citizen of such State against a citizen of the same, and a citizen of another State, upon petition of the defendant, filed at any time before trial or final hearing, if (so far as relates to him) it is brought for the purpose of restraining or enjoining him, or is a suit in which there can be a final termination of the controversy, so far as concerns him, without the presence of the other defendants, as parties in said cause.
Third. When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if before or at the time of filing said petition he makes and files in said State court an affidavit, stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court.
To effect a removal in any of the cases the petitioner must, at the time of filing his petition in the State court, offer to the State court 'good and sufficient security for his entering in said Circuit Court on the first day of its session copies of said process against him, and of all pleadings, depositions, and testimony, and other proceedings in the case, or in said cases, where a citizen of the State where the suit is brought is a defendant, copies of all process, pleadings, depositions, testimony, and other proceedings in the cause concerning or affecting the petitioner,' &c.
These different statutes being in force, and the only ones on the subject, the record in the present case came here.
It showed that Ramsey originally commenced an action against the Pittsburg, Cincinnati, and St. Louis Railway Company in the Superior Court of the City of Chicago; that the suit was afterwards transferred, according to the statutes in such case provided, to the Circuit Court of the United States for the Northern District of Illinois; that while it was pending in that court undetermined the files and pleadings were all destroyed by fire; that after the fire the plaintiff asked leave to file a declaration as a substitute for the one destroyed; that the defendant assented to this request, and on the same day the court made an order, as follows:
'By agreement of the parties, by their attorneys, as per stipulation filed, leave is given them to file a copy of the declaration and plea heretofore filed herein and destroyed by fire on the 9th of October last, and it is ordered that they be substituted for and stand in the place of the original declaration and plea so destroyed.'
That thereupon copies of such pleadings were filed, but that there was nothing in the declaration or plea to show the jurisdiction of the Circuit Court; that on the 11th June, 1872, the parties went to trial upon the issues joined, and that a verdict was rendered for the plaintiff on the 14th of the same month; that on the same day the defendant filed a motion for a new trial, and on the 29th a further motion in arrest of judgment, for the reason that there was nothing upon the record to show that the court had jurisdiction, and that on the 29th of December following the court overruled both motions and gave judgment upon the verdict.
It nowhere appeared that either of the parties attempted to supply any of the lost files except the pleadings, or that any objection was made to the jurisdiction until after the trial was had and a verdict rendered.
The action of the court in overruling the motion in arrest of judgment was the only matter now assigned for error.
Messrs. E. Walker and R. B. Roberts, for the plaintiff in error:
There nowhere appears on this record any averment of the citizenship of the plaintiff, nor is any allusion made even to his residence.
'The decisions of this court require that the averment of jurisdiction shall be positive; that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that the ...