CARNEGIE, PHIPPS & CO., Limited, v. HULBERT et al., 53 F. 10

CALDWELL, Circuit Judge. ' This action was brought in the cir- • cuit court of the United States for the district of Nebraska. A demurrer to the-complaint was sustained, and judgment rendered for the defendants, and thereupon the plaintiff sued out this writ of error.

The case has been argued upon its merits, but, upon looking into the record, it appears the following is the only jurisdictional averment in the complaint relating to the citizenship of the plaintiff: , “The plaintiff, Carnegie, Phipps & Co.,’ Limited, a copartnership organized under and created by the laws of the state of Pennsylvania,-and by the laws of said state of Pennsylvania authorized and empowered to sue and.be sued in its copartnership name, respectfully represents that said copartnership is engaged in, and has its principal place of 'business in, the city of Pittsburgh, and state of Pennsylvania, and is a citizen of said state. ” This averment does not show a case of which the circuit court could take jurisdiction.

The allegation is that the plaintiff is a copartnership created by the laws of the state of Pennsylvania, and not a corporation. A copartnership is not a corporation, and cannot be a citizen of a state, within the meaning of the statutes regulating the jurisdiction of the circuit court. By force of the decisions of the supreme court, the stockholders of a corporation, for the purpose of determining the jurisdiction of the federal courts in suits to which the corporation is a party, are conclusively presumed to be citizens of the state by whose laws the corporati on was created. Railroad Co. v.

Wheeler, 1 Black, 286; Bridge Co. v. Shepherd, 20 How. 227. But no such presumption obtains as to the members of a copartnership. The fact that, by the laws of the state of Pennsylvania, this copartnership is authorized to sue in its copartnership name in that state, does not authorize it to sue in the federal court as a citizen of that state. Chapman v. Barney, 129 U. S. 677, 682, 9 Sup. Ct. Rep. 426. When a copartnership sues, the citizenship of the partners composing it must be a verred, and must be such as to confer the jurisdiction.

For aught that appears in the record, the members of the copartnership and the defendants may he citizens of the same state. The judgment of the circuit court is reversed, for want of jurisdiction, at the costs of the plaintiff in error, and the cause remanded, with directions to that court to dismiss it unless the plaintiff shall amend its complaint to show jurisdiction.