Cooper v. Newell (155 U.S. 532)

This was an action of trespass to try title by Stewart Newell against Eliza Cooper and others. Plaintiff's petition began as follows:

'The petition of Stewart Newell, a resident citizen of the city of New York, in the state of New York, hereinafter styled plaintiff, complaining of Eliza Cooper, B. P. Cooper and Fannie Westrope, all residents of Gal veston county, in the state of Texas, and hereinafter styled defendants.' It contained no other allegations as to the citizen ship of the parties. On trial of the issue of fact the jury found for plaintiff for theland described in the petition, and judgment for plaintiff was entered on the verdict. Defendants brought error.

F. Charles Hume, for plaintiffs in error, besides arguing one of several errors assigned, which was relied on for the reversal of the judgment below, said in his brief:

'We here assign, as ground for reversal, the further error: 'That the court had no jurisdiction of the cause, in that the citizenship of the difendants is not disclosed by the record.'

'The citizenship of defendants is nowhere shown by the record. Nothing appears but that defendants are complained of as 'all residents of Galveston county, in the state of Texas.' Menard v. Goggan, 121 U.S. 253, 7 Sup. Ct. 873; Johnson v. Christian, 125 U.S. 642, 8 Sup. Ct. 989, 1135; Robertson v. Cease, 97 U.S. 647; Halsted v. Buster, 119 U.S. 342, 7 Sup. Ct. 276; Grace v. Insurance Co., 109 U.S. 278, 283, 284, 3 Sup. Ct. 207; Railway Co. v. Swan, 111 U.S. 379, 382, 4 Sup. Ct. 510; Insurance Co. v. Rhoads, 110 U.S. 237, 239, 240, 7 Sup. Ct. 193; Everhart v. Huntsville College, 120 U.S. 228, 7 Sup. Ct. 555; Cameron v. Hodges, 127 U.S. 322, 325, 326, 8 Sup. Ct. 1154.' John Ireland and A. H. Garland, for defendant in error.

Mr. Garland, in an additional brief, said on the question of the jurisdiction of the court below:

'Counsel for plaintiff presents here to this court a question which is not raised in the court below, and it is now for the first time in the progress of the case suggested, and that is that there is no sufficient averment of the citizenship of the defendants below to give the trial court jurisdiction of this cause. It is true that the petition does not state with directness that defendants below were citizens of the state of Texas, but, if their citizenship can be sufficiently shown by the record, that will be sufficient. In other words, it is not necessary, in order to give the jurisdiction, that citizenship should absolutely be averred in the petition or declaration. To use the language of the chief justice in Railway Co. v. Ramsey, 22 Wall. 328, 'If, therefore, with these papers in the record, the jurisdiction would appear, the judgment ought not to have been arrested.' We say, if the papers and proceedings in this record show the citizenship, that would be quite sufficient. This case (22 Wall., supra) has been affirmed and followed by this court in Briges v. Sperry, 95 U.S. 401; Robertson v. Cease, 97 U.S. 646; and Grace v. Insurance Co., 109 U.S. 278, 3 Sup. Ct. 207.

'Now to the record. They are averred in the petition to be residents. Residence is prima facie evidence of citizenship. Pequignot v. City of Detroit, 16 Feb. 211, and cases cited. Then the averment is distinct that they entered into possession of the land in controversy, ejected Newell therefrom, and are in possession of the land, and withhold it from him. Then they are served with process where they are residents, and they come and appear by attorney, and plead to the merits of the case. Ordinarily, right here the question would end, and they would not be permitted to raise the point of jurisdiction. Here is an express waiver of the question, and a virtual admission of citizenship. And upon this state of the case, to say no more, it would appear that there was jurisdiction, ample and complete. Taylor v. Cook, 2 McLean, 516, Fed. Cas. No. 13,789. And it is entirely too late, in view of these facts, to insist upon the question here. Gassies v. Ballon, 6 Pet. 761; Express Co. v. Kountze, 8 Wall. 342; Bradstreet v. Thomas, 12 Pet. 59.'  Mr. Chief Justice FULLER.