ATLANTIC COAST LINE R. CO. v. WHILDEN, 195 F. 263

SHELBY, Circuit Judge. There is no claim that the Circuit Court had jurisdiction in this cause, except upon the ground that it is a controversy between citizens of different states. It is alleged that Whilden, the plaintiff below, is a citizen of the state of Florida; but neither the declaration nor any other part of the record shows under what law the defendant corporation was chartered.

The averment is that it is a “corporation and citizen of the state of Virginia.” To give the court below jurisdiction, it is necessary for the record to show that the defendant corporation was created by a state whereof the plaintiff was not a citizen. When the record fails to show the jurisdiction of the court below, this court is required to reverse the judgment. Knight v. Lutcher & Moore Lumber Company, 136 Fed. 404, 406, 69 C. C. A. 248, and cases there cited: Muller v. Dows, 94 U. S. 444, 24 L. Ed. 207. The judgment is reversed, and the cause remanded.

Note: The reversal of the judgment in such case does not necessarily set aside the verdict. The cause being remanded, the declaration may be amended so as to show jurisdiction. If jurisdictional averments are denied, that issue may be determined in the trial court. Atchison, T. & S. F. Railroad Company v. Gilliland, 193 Fed. 608, 113 C. C. A. 476.