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WHAT MUST BE DISCLOSED BY THE RECORD, TO GIVE JURISDICTION UNDER THE TWENTY-FIFTH SECTION Of the JUDICIARY ACT.

§ 441. A party was sued in the territorial court of Florida, while Florida was yet a territory. After Florida became a state, and the territorial court in which the suit was pending had ceased to exist, the papers were transmitted to the circuit court of the state for the same county. Both the plaintiff and defendant appeared in the latter court, the cause proceeded to trial, and a verdict was rendered for the plaintiff. The defendant thereupon moved for a new trial, but the motion was overruled. He, thereupon, offered to prove that he was a citizen of Georgia at the time the suit. was brought; and this fact being admitted by the plaintiff, the defendant then moved in arrest of judgment, upon the ground that under the Act of Congress of Feb. 22d, 1847, the suit was, by operation of law, transferred to the District Court of the United States for the District of Florida, and that the circuit court of the state had no right to take possession of the papers, or to try the cause. The motion was refused, and judgment entered on the verdict. Whereupon the defendant appealed to the Supreme Court of the state, the judgment of the circuit court was affirmed, and the defendant then sued out a writ of error to the Supreme Court of the United States, upon the ground that the decision of the highest court of the state had been given against a right claimed under an act of Congress.

§ 442. The Supreme Court of the United States, upon a motion to dismiss the writ of error for want of jurisdiction, held that the right claimed by the plaintiff in error under an Act of Congress, not having been placed upon the record in the state court, and the fact that the plaintiff in error was a citizen of the State of Georgia, appearing only by new evidence offered on the motion in arrest of judgment, the state court could not go behind the record to notice that fact, and consequently that in proceeding to give judgment

on the verdict, the state court could not legally have decided on the validity of the plaintiff's objection to its jurisdiction. The writ of error was, therefore, dismissed, upon the ground that the record did not disclose a decision made by the State Court against a right claimed under an act of Congress.1

1 Carter v. Bennett, 15 Howard, 354. In disposing of this case, Mr. Chief Justice Taney said: "Upon this motion to dismiss the writ of error, the construction of the Act of Congress of 1847 is not before us. In this stage of the case we are not called on to decide whether this Act of Congress did or did not, proprio vigore, transfer the case to the District Court of the United States. The only question presented by the motion is, whether, upon the record before us, we have a right to reverse the judgment of the state court? And, in order to give this court jurisdiction over the judgment of the state court, it must appear by the record that the right now claimed by the plaintiff in error to remove the case to the District Court of the United States, was so drawn in question in the state court, that it must have been decided in the judgment it has given. 66 Now, there is nothing in the pleadings to show that Carter was a citizen of Georgia. It is not so stated in the declaration or plea. And when the papers were transmitted to the state court, he appeared there, and defended himself upon the plea of the general issue, which he had put in in the territorial court. This plea admitted the jurisdiction of the court; and the case was tried, and the verdict rendered upon these pleadings. And upon a motion in arrest of judgment the court cannot look beyond the record; and the judgment cannot be arrested, unless there is some error in law, or defect of jurisdiction apparent in the proceedings. And here there was no error or defect of jurisdiction apparent on the record, even if the construction of the Act of 1847, contended for by the plaintiff in error, is the true one. Both parties, by their pleadings, admitted the jurisdiction of the court; and there was no averment, in any part of them, that Carter was a citizen of Georgia. And after a verdict is rendered, the judgment cannot be arrested by the introduction of new evidence on a new fact. It may, in a proper case, lay the foundation of a motion for a new trial, but not in arrest of judgment.

"It is evident, therefore, that the state court, in proceeding to give judgment on the verdict, could not legally have decided upon the validity of the plaintiff's objection to its jurisdiction. They could not hear evidence, in that stage of the case, to prove that Carter was a citizen of Georgia, nor judicially notice it when admitted by the opposite party. And we are bound to presume that they proceeded to judgment on this ground, and did not consider the right claimed by the plaintiff in error as properly before them.

"In an action in a circuit court of the United States, where the juris

APPEAL AND FINAL DECREE.

§ 443. Where the respondent in a chancery suit in the circuit court took two grounds of defence, and the judge, in giving his reasons for a decree dismissing the bill, upon one of the two grounds, expressed his opinion that the respondent had not established the other ground, and thereupon the complainant appealed to the Supreme Court, by whom both grounds of defence were held insufficient, the decree reversed, and a mandate sent down accordingly; it was held, first, that there could be no appeal from an opinion expressed by the court below upon the facts of the case not affecting its decree; second, that the decree of the court below having been reversed by the Supreme Court, there existed no such decree as that appealed from; and, third, that the court below not having acted upon the mandate and made a final decree, there was no final decree to appeal from.1

diction depends upon the citizenship of the parties, it has always been held that where the plaintiff avers in his declaration that he and the defendant are citizens of different states, if the defendant means to deny the fact and the jurisdiction, he must plead it in abatement; and if he omit to plead it in abatement, and pleads in bar to the action, he cannot avail himself of the objection at the trial. Still less could he be permitted to do so upon a motion in arrest of judgment. And the same principles which this court sanctions in such cases in the courts of the United States, upon questions of jurisdiction depending upon personal privilege, we are bound to apply to the proceedings in the state court.

"Undoubtedly it was in the power of the plaintiff in error, when he appeared to the suit in the circuit court of the state, to have pleaded to the jurisdiction, upon the ground that he was a citizen of Georgia. Whether such a plea could have been maintained or not, it is not necessary for us to say. But it would have brought before the court the construction of the Act of 1847, and it must have been judicially decided, And, if the decision had been against the right he claimed under it, this court would have had jurisdiction to hear and determine that question. But upon the record, as it comes before us, it does not appear that this question was ever presented to the state court in a manner that would enable it judicially to notice or decide it. And the writ of error must, therefore, be dismissed for want of jurisdiction."

1 Corning v. The Troy Iron and Nail Factory, 15 Howard, 451.

APPENDIX.

I.

RULES AND ORDERS

OF THE

SUPREME COURT OF THE UNITED STATES.

No. 1.

(FEBRUARY 3, 1790.)

Ordered, That JOHN TUCKER, Esq., of Boston, Clerk. be the clerk of this court.

That he reside and keep his office at the seat of the National Government, and that he do not practise either as an Attorney or Counsellor in this Court while he shall continue to be Clerk of the same.

No. 2.

(FEBRUARY 5, 1790.)

Counsel.

Ordered, That (until further orders) it shall be requisite to the admission of Attorneys or Admission of Counsellors to practise in this Court, that they shall have been such for three years past in the Supreme Courts of the State to which they respectively belong, and that their private and professional character shall appear to be fair.

Counsel.

No. 3.

(FEBRUARY 5, 1790.)

Ordered, That Counsellors shall not practise as Attorneys, nor Attorneys as Counsellors, in this Court. (See Rule 14.)

No. 4.

(FEBRUARY 5, 1790.)

Ordered, That they shall respectively take do so

Oath of Coun- the following oath, viz.: “I,

sel.

lemnly swear that I will demean myself (as an Attorney or Counsellor of this Court) uprightly, and according to law; and that I will support the Constitution of the United States." (See Rule 6.)

Process in

name of President.

No. 5.

(FEBRUARY 5, 1790.)

Ordered, That (unless and until it shall otherwise be provided by law) all process of this Court shall be in the name of the President of the United States.

No. 6.

(FEBRUARY 7, 1791.)

Ordered, That the Counsellors and Attorneys Oath of Coun- admitted to practise in this Court, shall take either an oath, or in proper cases, an affirmation, of the tenor prescribed by the rule of this Court

sel.

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