Morgan's v. Gay, 86 U.S. 81 (1874)

86 U.S.
81
22 L.Ed. 100
19 Wall. 81
MORGAN'S EXECUTOR
v.
GAY.
October Term, 1873
ERROR to the Circuit Court for the District of Louisiana; the case being
thus:
The eleventh section of the Judiciary Act, which gives jurisdiction to the
Circuit Courts of suits 'between a citizen of the State where the suit is
brought and a citizen of another State,' enacts, nevertheless, that no Circuit
Court shall 'have cognizance of any suit to recover the contents of any
promissory note or other chose in action, in favor of an assignee, unless a
suit might have been prosecuted in such court to recover the said contents
if no assignment had been made; except in cases of foreign bills of
exchange.'
This statute being in force, Gay, as indorsee of three several inland bills of
exchange, drawn or accepted by one Morgan, in his life, sued his executor
upon them. Two of the bills were indorsed by the payees, and the third by
its payee and by other indorsers.
The plaintiff in his petition described himself as a citizen of Kentucky,
and described the defendant as a citizen of Louisiana, but said nothing
about the citizenship of the payees of the bills, nor, in the case of that one
indorsed by subsequent indorsers, of the citizenship of these.
The defendant pleaded the statute of limitations, general issue, &c.
The cause was called for trial, the plaintiff being represented by counsel;
but the counsel for the defendant not being present. The cause was
submitted for hearing to the court without a jury, and without any written
stipulation such as that which, when made in writing and filed with the
clerk of the court, the act of March 3d, 1865, allows to have the effect of
waiving a jury. The court overruled the plea, determined that the case was
made out, and rendered a judgment for the plaintiff for the sum of the
three bills, with interest and costs.1

The defendant now brought the case here for review.
Messrs. J. A. and D. G. Campbell, for the plaintiff in error; no opposing
counsel.
Mr. Justice STRONG delivered the opinion of the court.
The plaintiff is an assignee of the bills within the meaning of the eleventh
section of the Judiciary Act of 1789, and by the express provisions of the
section is not entitled to maintain his action in the Circuit Court, unless a suit
might have been prosecuted in such court to recover the contents of the bills if
no assignment had been made. But the petition does not show that the indorsers
through whom the plaintiff claims were not citizens of Louisiana at the time the
suit was brought. It is true, the citizenship of the defendant is averred to have
been in Louisiana, and that of the plaintiff in Kentucky, but there is no
averment of the citizenship of the payees of the bills, or of the citizenship of the
subsequent indorsers. For aught that appears in the record, they may also be
citizens of Louisiana; and, therefore, incapable of suing in the Circuit Court for
that district to recover the contents of the bills. As that court has only a limited
jurisdiction, it must appear affirmatively that it may take cognizance of the
controversy between the parties.2 In Turner v. The Bank of North America,3 it
was distinctly ruled that when an action upon a promissory note is brought in a
Federal court by an indorser against the maker, not only the parties to the suit,
but also the citizenship of the payee, and the indorser, must be averred in the
record to be such as to give the court jurisdiction. The same rule was asserted in
Montalet v. Murray,4 in Mollan v. Torrance,5 and in Gibson et al. v. Chew.6
The judgment must, therefore, be reversed, and the cause sent back that
amendment may be made in the pleadings showing the citizenship of the
indorser of the bills, if it be such as to give the court jurisdiction of the case.
We may notice another error which will doubtless be avoided should there be a
second trial. Issues of fact appear to have been made up which were determined
by the court in the absence of the defendant's counsel, and without any written
agreement to waive a jury trial. This was irregular. In the absence of such an
agreement, and of the defendant's counsel, it was not competent for the court to
try the issue without the intervention of a jury.7
JUDGMENT REVERSED, and the cause remanded for further proceedings.
IN ACCORDANCE WITH THIS OPINION.
IN ACCORDANCE WITH THIS OPINION.
The act referred to enacts:

'Issues of fact in civil cases, in any Circuit Court . . . may be tried and
determined by the court without the intervention of a jury, whenever the parties
or attorneys of record file a stipulation in writing with the clerk of the court
waiving a jury.'
Turner v. Enrille, 4 Dallas, 7.
Ib. 8.
Cranch, 46.
9 Wheaton, 537.
16 Peters, 315.
Kearney v. Case, 12 Wallace, 275.

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86 U.S.

three bills, with interest and costs.1

JUDGMENT REVERSED, and the cause remanded for further proceedings.

IN ACCORDANCE WITH THIS OPINION.

IN ACCORDANCE WITH THIS OPINION.

The act referred to enacts:

Turner v. Enrille, 4 Dallas, 7.

Kearney v. Case, 12 Wallace, 275.

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