KANSAS CITY SOUTHERN RY. CO. v. PRUNTY, 133 F. 13

SHELBY, Circuit Judge. This suit was brought in the First Judicial District Court of Caddo parish, La., by Clark Prunty against the Kansas City Southern Railway Company to recover damages for personal injuries received by the plaintiff, who is defendant in error, while acting as a brakeman in the employ of the defendant, who is plaintiff in error. The case was removed to the Circuit Court of the United States for the Western District of Louisiana on the application of the railway company, and was tried before a jury, and verdict and judgment had against the railway company.

There are limits imposed by law to the jurisdiction of the United States courts, and it is an inflexible rule that this court of its own motion should examine the record to test its own jurisdiction and the jurisdiction of the court below. M., C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462; Grace v. Amer. Cent. Ins. Co., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. Ed. 932. The ground upon which it was sought to remove this case from the state to the federal court was that it is a case between citizens of different states. No other ground of federal jurisdiction is suggested.

The petition for removal was filed by the defendant, the Kansas City Southern Railway Company, and the following is all that the petition contains on the question of the citizenship of the parties: “While the defendant is now, and was at the date of bringing said action, and long before, and has always been, a resident and domiciled in the state of Missouri, and is not, nor has it ever been, a resident of the state of Louisiana, or domiciled therein, having only an agent, viz., T.

Alexander, of your said parish and state, on whom process might be served; but your defendant was at time of filing this suit a citizen of the state of Missouri, and is still a citizen thereof, residing in the city of Kansas Oity, of said state of Missouri, and no other, while said plaintiff is a citizen and resident of the state of-; and your petitioner desires to remove this suit, before the trial thereof, into the next Circuit Court of the United States to be held in the Western District of Louisiana.” A corporation created by and doing business in a state is to be deemed, for the purpose of fixing the jurisdiction, a citizen of such state.

It would have been sufficient, therefore, so far as the status of the petitioner was concerned, to have averred that the petitioner was a corporation chartered or organized under the laws of Missouri. But it is not alleged that it is a corporation. It may be a joint-stock company, so far as the averments of the petition are concerned. It is at least doubtful whether the petition is sufficient to show the status of the petitioner so as to affirmatively show federal jurisdiction. In the Lafayette Ins. Co. v. French, 18 How. 404, 15 L.

Ed. 451, it was held that it is not enough, in order to give jurisdiction, to say that the corporation “is a citizen of the state where the suit is brought.” See, also, Muller v. Dows, 94 U. S. 444, 24 L. Ed. 207. We do not dwell on this phase of the case, however, because in the petition filed by the plaintiff in the state court declaring his cause of action it is stated that the Kansas City Southern Railway Company is “a corporation organized under the laws of Missouri,” and this averment makes the record show the status of the company, and would supply the defect in that regard of the petition to remove.

But the petition entirely fails to show the citizenship of Clark Prunty, the plaintiff suing in the state court. The only averment is that the “plaintiff is a citizen and resident of the state of-.” How the petitioner intended to fill the blank left we have no means of telling. If the petition to remove, aided by the other parts of the record, shows that the petitioner was a corporation organized under the laws of Missouri, it does not affirmatively show that Clark Prunty was not a citizen of Missouri; and if he is a citizen of Missouri the federal court has not jurisdiction of the case.

We have carefully examined the record to see if any part of it would supply the defect. We find nothing to show that Clark Prunty is a citizen of a state other than Missouri. In the petition filed in the state court by him stating his cause of action he describes himself as a “resident of Caddo parish, Louisiana.” But this averment does not supply the defect. When the jurisdiction of a court of the United States depends on citizenship of the parties, such citizenship, and not simply their residence, must be shown by the record. Abercrombie v. Dupuis, 1 Cranch, 343, 2 L. Ed. 129; 1 Rose’s Notes, 177; Robertson v.

Cease, 97 U. S. 647, 24 L. Ed. 1057; Mexican Central Ry. Co. v. Duthie, 189 U. S. 76, 23 Sup. Ct. 610, 47 L. Ed. 715; Horne v. Hammond, 155 U. S. 393, 15 Sup. Ct. 167, 39 L. Ed. 197; Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966, 35 L. Ed. 657. The record failing to affirmatively show the jurisdiction of the Circuit Court, that court should have remanded the case to the state court. The cause was improperly removed to the Circuit Court. The costs should be awarded against the party wrongfully removing the cause. M., C. & Lake M. Ry. Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462.

The judgment of the Circuit Court is reversed, with costs against the plaintiff in error, and the case is remanded to the Circuit Court, with directions to proceed according to law and in conformity to the opinion of this court; and it is so ordered.