TUNSTALL v. WORTHINGTON, 24 F. Cas. 324

DANIEL, Circuit Justice. The proceeding of garnishment, as regulated by the statute of Arkansas, is anomalous, being partly legal and partly equitable. But it must be regarded as a civil suit, and not as process of execution to enforce a judgment already rendered. It may be used as a means to obtain satisfaction of a demand, in the same man-nér as a suit may be resorted to on a judgment of another state, with a view to coerce the payment of such judgment.

In this pro-' ceeding the parties have day in court; an issue of fact may be tried by a jury, evidence adduced, judgment rendered, costs adjudged, and execution issued on the judgment. It is in every respect a suit in which the primary object is to obtain judgment against the garnishee, and certainly cannot with any plausibility be treated as process of execution, or as part of the execution process; for if so, there could be no necessity or propriety in resorting to this forum to investigate the relations of debtor and creditor.

Considering it, then, as a suit, we have, on' full examination of the pleadings and record, ' come to the conclusion that the suit ought,' to be dismissed, because it is not shown by • the pleadings or record that this is a controversy between citizens of different states, which we think essential to give this court jurisdiction.

The courts of the United States,' . although not of inferior, are of limited jurisdiction; and it is too well settled to admit of question, that the citizenship of the parties must be stated, so that it may affirmatively appear that the suit is between citizens of different states. [Jackson v. Twentyman] 2 Pet. [27 U. S.] 136; [Mollan v. Torrance] 9 Wheat. [22 U. S.] 537. And the •omission is fatal at any stage of the cause. Wood v. Mann [Case No. 17,952]. In the writ of garnishment it is stated that. Elisha Worthington, the garnishee, is a citizen of Arkansas, and in the allegation that Thomas T.

Tunstall, the plaintiff, is a citizen of Arkansas, and Abner Johnson, the judgment debtor, a citizen of Texas. It thus appears affirmatively on the face of these proceedings, that the plaintiff and defendant are both citizens of the same state. The contest is between them; and the fact that Abner Johnson is a citizen of Texas, cannot help the matter. The plaintiff, or judgment creditor, and the garnishee, must be citizens of different states; and that fact must appear by the pleadings or the record to give this court jurisdiction. Upon our own motion, we dismiss this case for want of jurisdiction.

Dismissed accordingly.