DANAHY v. NATIONAL BANK OF DENISON, 64 F. 148

JENKINS, Circuit Judge. A review is here sought of a judgment rendered in a suit upon certain promissory notes claimed to have been made by the firm of Danahy & McDonald. We are constrained to reverse this judgment without passing upon the merits of the controversy, and for want of showing of jurisdiction in the court below. The allegation of the declaration is as follows: “The National Bank of Denison, a corporation, complains of Daniel Danahy and Donald J.

McDonald, late partners under the firm name of Danahy & McDonald, defendants in this suit, .summoned,” etc., “of a plea of trespass on the case on promises.” There is no allegation in the declaration of the citizenship of either the plaintiff or the defendant. There is no other allegation of the incorporation of the plaintiff than that stated. We are asked to take judicial notice that the defendant in error is a national' bank, because of its name. If we could do this, it would not avail.

Formerly, a national bank could sue or be sued in the courts of the United States in the district in which it is established, without respect to the citizenship of the opposite party. Rev. St. § 629, subd. 10; County of Wilson v. Bank, 103 U. S. 770, decided in 18S0.

But under the act of July 12, 1882 (22 Stat. 162, § 4), and the act of 1887 (24 St. 552), as corrected and re-enacted in 1888 (25 Stat. 433), all national banking associations shall, for the purposes of suit, “be deemed citizens o£ tbe states in which they are respectively located, and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state.” Under the first of these acts it was held that a suit can neither be brought in nor removed into the United States courts unless a similar suit could bo entertained by the same court by or against a state hank in like situation with the national bank, and that under that law nothing in the way of jurisdiction could be claimed by a national bunk because of the source of its incorporation.

Bank v. Cooper, 120 U. S. 778, 7 Sup. Ct. 777. 3t is clear that, in order to confer jurisdiction, the diverse citizenship of the parties to the suit must appear hv the record, and this cannot he waived. This has been so often declared by the supreme court as now to be elementary. The jurisdiction need not necessarily be averred in the pleadings, if it otherwise affirmatively appears by the record. Railway Co. v. Ramsey, 22 Wall. 222. We have therefore searched the record to discover if jurisdiction might be saved, and the case decided upon its merits.

We find, however, no evidence of the citizenship of the plaintiff in error. He states in his testimony that he lives at Aurora, Ill.; but “residence” and “citizenship” are not synonymous terms. Robertson v. Cease, 97 U. S. 646; Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154; Anderson v. Watt, 138 U. S. 694, 702, 11 Sup. Ct. 449; Timmons v. Land Co., 139 U. S. 378, 11 Sup. Ct. 585. We have been asked, in case we should be compelled to reverse this judgment upon this ground, to remand themase with leave to amend the declaration to show jurisdiction conformable to the facts.

This we are authorized to do by Robertson v. Cease, 97 U. S. 646, 651. The judgment will he reversed for failure in the record to disclose jurisdiction, with direction to permit amendment of the declaration in the assertion of jurisdictional facts, and to award a new trial.