FARMERS' OIL & GUANO CO. v. DUCKWORTH CO., 217 F. 362

PARDEE, Circuit Judge (after stating the facts as above). Although not questioned in the District Court, nor ’by assignment of error in this court, the jurisdiction of the District Court is the real question now to be determined. In Morris v. Gilmer, 129 U. S. 315-326, 9 Sup. Ct. 289, 292 (32 L. Ed. 690), our duty is clearly declared as follows: “On every■ writ of error or appeal, the first and fundamental question is that of jurisdiction, first of this court, and then of the court from which the record comes.

This question the court is bound to ask and answer for'itself, even wlfen not otherwise suggested, and without respect to the relations of the parties to it.” It is well settled in the federal courts that jurisdiction must affirmatively appear in the record. See Morris v. Gilmer, supra, and the ’ cases there cited. This proposition has been announced and acted upon in very many cases in this court, and we announce it again for the information of fhe bar of this circuit.

In this case, the sole showing, of the diverse citizenship necessary to confer jurisdiction on the District Court is in substance the averments that the plaintiff is a corporation of the state of New Jersey and that the defendant is a corporation of the state of Georgia.

A suit brought by a private corporation is practically a suit brought by all the stockholders of such corporation, and to give jurisdiction to the federal -courts facts must be so specifically and sufficiently averred that the court on the record can conclusively presume that all the stockholders of the plaintiff or defendant corporation are citizens of the particular state wherein the corporation claims citizenship. In American Sugar Refining Company v. Johnson, 60 Fed. 503, 9 C. C.

A. 110, this court, reviewing adjudged cases, considered the sufficiency of the showing necessary to confer jurisdiction on the federal court in suits by or against private corporations, and therein held that an averment that “the American Sugar Refining Company, a corporation domiciled and doing business in this city [New Orleans] and a citizen of New Jersey, and found within the Eastern district of Louisiana, and authorized to accept service of legal process, is indebted,” etc., was insufficient, and the opinion concludes: “From these considerations and authorities we conclude that in a suit for or against a corporation in the courts of the United States the matter of jurisdiction may be shortly stated as follows: That, in order to hold that a private corporation is a citizen of a particular state, within the meaning of the word ‘citizen’ as used in the judicial acts of the United States, and thereby conclusively presume that all of the shareholders of such corporation are citizens of the particular state, it must affirmatively appear that the corporation was created under the laws of such state; and it would seem that an averment that the body suing or sued is a corporation or a citizen or both of a particular state is insufficient.” See cases cited and Curtis on Jurisdiction, pp. 145-148; St.

Louis & San Francisco Ry. Co. v. James, 161 U. S. 545, 562, 16 Sup. Ct. 621, 40 L. Ed. 802. It may be noticed that, in further disposing of American Sugar Refining Co. v.

Johnson, we said: “This conclusion is sufficient to reverse the case; but, as the error in question may be cured by amendment in the court below, and the case retried, we proceed to consider the other assignments of error.” In the present case, identical in this particular aspect, we intended following much the same course; but as the judges were not all of the same mind as to the sufficiency of the assignments of error in relation to damages, and as the lamentable death of Judge Shelby has intervened, necessarily changing the personnel of the court, and as on sufficient averments and a new trial the precise questions may not again arise, we pretermit all further discussion of the case.

The judgment of the District Court is reversed, and the cause is remanded, with instructions to dismiss the same, unless by proper and sufficient averments the jurisdiction of the court shall be shown, in which case a new trial may be awarded.