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Opinion of the Court.

hands of Mrs. Bowie for her support, and only conveyed by her upon the promise of support, as the consideration for such conveyance. Wherefore plaintiffs prayed an injunction against the execution and enforcement of such judgment in ejectment.

Defendants interposed a general demurrer to the bill, which was sustained and the bill dismissed. Plaintiffs appealed to this court.

Mr. F. W. Compton for appellants.

Mr. U. M. Rose and Mr. G. B. Rose for appellees.

Mr. JUSTICE Brown, after stating the case, delivered the opinion of the court.

The object of this bill is to enjoin the enforcement of a judgment in ejectment upon the ground that, while the plaintiffs in such judgment held the legal title to the lands in dispute, the equitable title was in the defendants, the plaintiffs in this bill. Curtly stated, the facts are, that America A. Bowie, the widow and executrix of her husband, John W. Bowie, who was also heir-at-law to her two sons, and a creditor of the estate of her husband to the amount of $6234.41, executed a deed of her interest in his estate to her daughter, Martha B. Leatherman, (now Burns,) upon condition that the grantee should pay her an annuity of $100 per year, and provide her with a home during her life, and with a reservation of power to sell, upon thirty days' notice, in case of failure to perform the condition. The grantee did not pay the annuity or perform her covenants, and Mrs. Bowie, without taking any steps to obtain the annulment of the deed, or the reconveyance of the property, assumed to sell under the power contained in the deed, and did sell at public auction to the plaintiff Reynolds one parcel, for $1180; to the plaintiff Springer, another, for $10.50; to the plaintiff Halley, another, for $71, all of whom received their deeds and entered into possession. Mrs. Burns and her husband thereupon brought ejectment and obtained judgment, to enjoin which this bill was filed.

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Statement of the Case.

From this brief statement of facts it is entirely clear that this court has no jurisdiction of the appeal. There is no allegation or proof of the value of the property recovered in the ejectment suit, the only showing being that the aggregate amount paid by the three plaintiffs for their parcels was $1291.50. The only allegation of value is that the whole estate was “not worth $6000," though how much less it was worth is not stated. It further appears that plaintiffs' deeds did not cover the whole of such estate, and that the amount due and unpaid upon the annuity at the time these sales were made was about $1300.

Under no possible theory can the case be said to involve the amount exceeding $5000 requisite to give this court jurisdiction, and the appeal must therefore be

Dismissed.

DENNY V. PIRONI.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

NORTHERN DISTRICT OF TEXAS.

No. 1661. Submitted April 27, 1891. – Decided May 25, 1891.

When the pleadings in an action in a Circuit Court of the United States fail

to show averments of diverse citizenship necessary to give the court jurisdiction, the fault cannot be cured by making such an averment in

a remittitur by the plaintiff of a portion of the judgment. While it is not necessary that the essential facts, necessary to give a Cir

cuit Court jurisdiction on the ground of diverse citizenship should be averred in the pleadings, they must appear in such papers as properly constitute the record on which judgment is entered, and not in averments which are improperly and surreptitiously introduced into the record for

the purpose of healing a defect in this particular. The cases on this subject reviewed.

This was a writ of error sued out under the act of February 25, 1889, 25 Stat. 693, c. 236, allowing a writ of error in all cases involving the jurisdiction of the Circuit Court.

The action was brought by the defendants in error against

Statement of the Case.

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Denny, one of the plaintiffs in error, to recover certain wines purchased of the plaintiffs by one Momand through the alleged fraudulent device of Denny, who subsequently seized such wines upon an attachment of his own against Momand. The only averment of citizenship, requisite to give jurisdiction, was contained in the following allegation:

“1. That petitioners, who are hereinafter styled plaintiffs, are and were at the times of the accrual of the causes of action hereinafter stated, a mercantile firm, composed as aforesaid, engaged in the wholesale wine and liquor business in the city and county of Los Angeles, California, where both of said plaintiffs also reside; that defendant is a resident citizen of Dallas County, Texas, within the Northern Judicial District of Texas."

The case went to trial upon this allegation, and a judgment was recovered against Denny and the sureties upon his replevin bond for $2224.70, the value of the property, besides $238.29 damages, with interest and costs. Motion was made for a new trial February 23, 1891, upon alleged errors in the instruction of the court and in the verdict of the jury, and was denied. Upon the same day a motion was made in arrest of the judgment, which had already been entered, upon the ground that there was no allegation in the petition showing that plaintiffs and defendant were citizens of different States, and no allegation to show that the court had jurisdiction. Upon the next day the plaintiffs filed the following remittitur:

“Now at this time come Pironi & Slatri, a firm and copartnership, composed of C. B. Pironi and F. Slatri, the plaintiffs in the above-numbered and entitled cause, each of whom is now and was at the date of the institution of this suit, a citizen of the State of California, and a resident of the city and county of Los Angeles, in said State of California, and show to the court that they, on the 21st day of February, 1891, recovered a judgment against the defendant, J. C. Denny, who was at the date of the institution of this suit a citizen of the State of Texas, and a resident of the city of Dallas, in said State of Texas, within the Northern Judicial District of Texas, for certain personal property of the value of $2224.70, and also

Opinion of the Court.

damages for its detention in the sum of $238.29, besides interest and costs; and said plaintiffs now in open court remit the sum of five dollars to and from the said sum of $238.29, the damages awarded in said judgment aforesaid; and plaintiffs pray that this remittitur may be noted on the docket and entered in the minutes, and that execution may issue in due course for the balance of said judgment after deducting said sum of five dollars now here remitted from the damages adjudged as aforesaid.”

Upon the filing of this document an order was made that “said remittitur be noted on the docket and filed herein as a part of the record of this cause, and that the said sum of five dollars be, and the same is hereby, remitted from the judgment of $238.29, assessed and adjudged as damages in said original judgment herein entered on February 21, 1891; and it is further ordered that execution issue for the balance only of said original judgment after deducting the said amount of five dollars so here remitted.” An order was also made denying the motion in arrest of judgment, and a bill of exceptions was settled setting forth the above facts.

Mr. John Johns for plaintiffs in error.

Mr. W. Hallett Phillips for defendants in error.

MR. JUSTICE Brown, after stating the case, delivered the opinion of the court.

The only averment of the plaintiffs citizenship appearing in the record prior to the remittitur is contained in the first allegation of the petition, that “the petitioners, who are hereinafter styled plaintiffs, are and were at the times of the accrual of the causes of action hereinafter stated, a mercantile firm, composed as aforesaid, engaged in the wholesale wine and liquor business in the city and county of Los Angeles, California, where both of said plaintiffs also reside.” That an averment of residence is not the equivalent of an averment of citizenship, and is insufficient to give the Circuit Court jurisdiction, has been settled in a multitude of cases in this court:

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Opinion of the Court.

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Parker v. Overman, 18 How. 137; Robertson v. Cease, 97 U. S.
646; Everhart v. Huntsville College, 120 U. S. 223; Menard v.
Goggan, 121 U. S. 253; and in case of a defective averment in
this particular the judgment will be reversed by this court
upon its own motion, and the case remanded; Peper v. For-
dyce, 119 U. S. 469; Everhart v. Huntsville College, 120 U. S.
223; Menard v. Goggan, 121 U. S. 253. A case cannot be
amended here so as to show jurisdiction, but the court below,
in its discretion, may allow it to be done where the suit was
instituted in the Circuit Court; Continental Insurance Com-
pany v. Rhoads, 119 U. S. 237; Halsted v. Buster, 119 U. S.
341.

This judgment then depends for its validity wholly upon
the question whether the mere recital of the citizenship of the
parties in the remittitur is such an incorporation of the same
into the record as obviates the objection to the original peti-
tion and supports the judgment. It has been repeatedly held
that it was not necessary for the averment to appear in the
pleadings, but that the statute was complied with if it appeared
in any part of the record. Thus in Railway Company v. Ram-
sey, 22 Wall. 322, 328, which was a case removed from a state
court, the averment of citizenship did not appear in the plead-
ings, but the parties, by stipulation and agreement placed on
file, and made part of the record, admitted that the cause was
brought into the Circuit Court by transfer from the state court
in accordance with the statutes in such case provided. By the
same stipulation it was made to appear that all the original
files in the cause had been destroyed by fire. The court held
that, while consent of parties cannot give the courts of the
United States jurisdiction, they may admit facts which show
jurisdiction, and the courts may act judicially upon such ad-
mission, and that it would be presumed that the petition for
removal stated facts sufficient to entitle the party to have the
transfer made. Said the Chief Justice, speaking for the court:
“As both the court and the parties accepted the transfer, it
cannot for a moment be doubted that the files did then con-
tain conclusive evidence of the existence of the jurisdictional
facts.” In Briges v. Sperry, 95 U. S. 401, the bill showed no

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