Charles M'Micken, plaintiff in error v. Amos Webb, Aaron Smith, and Ira Smith, defendants, 11 Pet. 25

Mr. Justice Thompson delivered the opinion of the Court: This case comes before this court on a writ of error.from the district court of the United States, in and for the eastern district of the state of Louisiana. The suit in the court below was commenced by petition, in which the cause of action is set out informally, but substantially, as follows. That the defendants are jointly and severally indebted to the plaintiff in the sum of $4866.93, besides interest and costs. For this, to wit: that some time in the year 1815, the petitioner and one James H.

Ficklin formed a co-partnership and did business in the parish of Feliciana in the state of Louisiana;- under the name and firm of M-'Micken & Ficklin; thaton or about the 8th day of September,. 1817, said partnership was dissolved by mutual consent.

That at the time of such dissolution there was a quantity or stock of goods on hand, which Ficklin took and purchased at cost with five per cent, addition, and for the payment of one-half of said stock of goods, he gave to the petitioner, a promissory note, dated the 20th of September, 1817, and payable on the 1st of March, 1819, to the order of M£Micken & Ficklip, for the sum of $4866.93, which note was executed by said Ficklin, Jedediah Smith (by the name of Jed.

Smith) and Amos Webb, by which they promised jointly and severally to pay the. aforesaid sum, according to the terms of said note, a copy of which is annexed to the petition. The petition avers, that the note was made and dated subsequent to the dissolution of the partnership, and although made payable to M£Micken & Ficklin, it was made for the sole benefit of the petitioner M£Micken, and that Ficklin was in no wise interested therein except as one of the obligors. The petition then sets out the death of Jedediah Smith, and here the other defendants become bound to pay the note.

It also contains an averment that the petitioner is a citizen of the state of Ohio, and that the defendants are citizens of the state of Louisiana. To this petition several pleas to the jurisdiction of the court are interposed. The defendant Webb, in one of his pleas, admits, that he is a citizen of Louisiana, and that he was in New Orleans when the petition and citation were served upon him; but avers, that he resides in the parish of St. Landry, in the western district of Louisiana, and denies the jurisdiction of the court on this ground.

The second plea in abatement is founded on the fact which is set out in the petition, that the note in questiqn is made .payable to M£Micken & Ficklin, and the suit is in the name of M£Micken alone, without showing any assignment by Ficklin, or that at the time of making said note, M£Micken & Ficklin could have prosecuted a suit upon it in this court. The third plea alleges a want of jurisdiction in the court; because the petition, does not allege that at the time of assigning .said note the* payees might have prosecuted the makers in this court..

The' other defendants also interposed pleas to the jurisdiction of the court, upon the grounds substantially as set forth in the two last pleas of Amos Webb. The court below sustained these pleas to the jurisdiction of the court, and dismissed the petition. This petition, although informal in many respects, must be considered as the commencement of a suit at law, according to the course of proceedings in the courts of the state of Louisiana; and is properly brought up here by writ of error.

The object of the petition is simply to set forth the cause of action, and praying that the defendants may be cited in court to answer to the demand set up against them; and all that is required in such petition according to the practice in Louisiana is, that it should contain a clear and concise statement of the object of the demand, or the cause of action upon which it is founded.

The question presented by the first plea to the jurisdiction of the court is whether Webb, a citizen of the state of Louisiana,- who resided in the-western district of that state, could be sued by a plaintiff, who was a citizen of'the state of Ohio, in the district court of' the' eastern district of the state of Louisiana.

The residence of Webb being in the western district of Louisiana, could not affect the jurisdiction of the courC Tire plea admits that he was a citizen of Louisiana, and the act of congress gives jurisdiction where the suit is between a citizen of the state where the suit is brought, and a citizen of another state; and the division of a state into two or more districts cannot affect the jurisdiction of the court on account of citizenship.

This plea admits that the petition and citation were served upon him in New Orleans, which takes the case out of the prohibition in the judiciary act, that no civil suit shall be brought in the courts of the United States, against an inhabitant of the United .States, by any original process, in any other district, than that whereof he is’an inhabitant, or in which he shall be found at the time of serving the writ.

The second plea to the jurisdiction of the court is founded on the assumption,' that the plaintiff M‘Micken, is to be considered as the assignee of M‘Micken & Ficklin of the note in question, and that the petition does not allege that they could have prosecuted a suit upon it in the courts of the United States; and that the case therefore falls within the prohibition in the judiciary act: That no district or circuit court shall have cognisance of any suit to recover the contents of any promissory note, or other chose in action in favour of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made; except in cases of foreign bills of exchange.

Laws U. S. 2 vol. 61. But the cause of action, and the right of the plaintiff to sustain it do not place him in the character of assignee. Ficklin never had any interest whatever in the note, according to the allegations in the petition; the partnership had been dissolved before the note in question was given.

The consideration thereof was M‘Micken’s share of the stock and goods on hand at the time of the dissolution of the partnership; and the petition avers, that although the note is given in the name of the late firm of M£Micken & Ficklin, it was for the sole and individual benefit of the petitioner, and that Ficklin was in no wise a party or interested -therein, except as one of the obligors; there was therefore no interest which Ficklin could assign, and the objection is. one purely of form and of a mere technical character; which ought not to be noticed according to the course of proceedings in the courts of Louisiana. - The facts set forth in the petition may well be considered as an averment that the' note was given to the petitioner, M'Micken, under the name and description of M‘Micken & Ficklin.

And this view of the case disposes of the matter set up by the other defendants in their pleas to the jurisdiction of the court, as well as of that which is set up in the third plea to the jurisdiction of the court. There are other pleas to the merits interposed, de bene esse, by all the defendants, and which have not, of course, been in any manner considered or disposed of by the court below, as the pleas to the jurisdiction of the court were sustained, and the petition dismissed.

Nor does the record contain the necessary matter to enable this Court to dispose of the case upon its merits; some of those, turning .upon questions of fact, the evidence to sustain which not all appearing upon the record; and the cause must therefore necessarily go back for further proceedings on those pleas. The judgment of the court below is accordingly reversed, and the cause sent back for further proceedings.

This cause came on to .be heard on the transcript of the record from the district court of the U nited States for the eastern district of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this Court that the judgment of the said district court in this cause be and the same is hereby reVersed, and that this cause be, and the.same‘is hereby remanded to the said district court for the further proceedings to be had therein according to law and justice, and in conformity to the opinion of this Court.