Appeal from the District Court of the United States for the Indianapolis Division of the Southern District of Indiana; Fred L. Wham, Judge.
Before EVANS and PAGE, Circuit Judges, and LINDLEY, District Judge.
Appellant, a citizen and resident of Indiana, sued appellees, also citizens and residents of Indiana, in the United States District Court for the Southern District of that state, to recover damages for injuries to appellant's business and reputation because of alleged acts of intimidation, and false and slanderous statements made and circulated by appellees, conspiring together.
Two defendants were not served with process, and made no appearance. All other defendants challenged the jurisdiction of the court, and this appeal is from an order dismissing the case for want of jurisdiction. All defendants, including the two who did not appear, are named as appellees.
The questions are: (1) Was the order of dismissal final and appealable; (2) was the appeal perfected; and (3) did the court have jurisdiction?
Appellees base their contention that there is no appealable order on Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S. Ct. 590, 37 L. Ed. 443, wherein several defendants were jointly charged with infringement of a patent. All parties were before the court, and the case was dismissed as to the Hamburg Company because it was not sued in a District whereof it was an inhabitant (28 USCA § 112). No disposition was made as to the other defendants who had been served with process and were before the court. The complaint here shows no diversity of citizenship, and it is admitted that there was none as to any defendant. If jurisdiction depends upon diversity of citizenship, as insisted by appellees, then the whole case necessarily ended because the District Court would be without power to issue process to bring parties before it in a cause where it had no jurisdiction. We are of opinion that the judgment was final.
Although the proceedings before the court in connection with the allowance of appeal are somewhat informal, yet the record shows that an appeal was prayed, errors assigned, bond approved, and citation issued. That was sufficient. In re Fiechtl (7th C.C.A.) 107 F. 618; Loveless v. Ransom (7th C.C.A.) 109 F. 391. See, also, Ross v. White (C.C.A.) 32 F.2d 750.
In his statement of the contested issues, appellant says:
"The power to bring such a suit as this appellant contends was reserved to him by the Constitution of the United States as it came from the National Convention September 17, 1787, without amendments."
Elsewhere, appellant states:
"We claim we are proceeding under Constitutional provision, clause 1 of section 1, of the 14th Amendment."
"Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440; Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281, and Milligan v. Hovey, 17 Fed. Cases 380, No. 9605, in the Circuit Court for the District of ...