*

Opinion of the Court.

as partners, if it exists at all, upon the death of the said Stephen C. Rose the cause of action survived to the other partners."

The petition, being accompanied with a satisfactory bond, was allowed, and an order made for the removal of the cause. The plaintiffs below afterwards, on December 13th, 1879, moved to remand the cause on the ground, among others, that the Circuit Court had no jurisdiction, because the "real and substantial controversy in the cause is between real and substantial parties who are citizens of the same State and not of different States." But the motion was denied.

Subsequently a trial took place upon the merits, which resulted in a verdict and judgment in favor of the plaintiffs, the defendants in error, for $238,116.18 against the defendants jointly, and the further sum of $116,468.32 against one of them.

Many exceptions to the rulings of the court during the trial were taken and are embodied in a bill of exceptions, on which errors have been assigned, and the writ of error is prosecuted by the defendants below to reverse this judgment.

An examination of the record, however, discloses that the Circuit Court had no jurisdiction to try the action; and as, for this reason, we are constrained to reverse the judgment, we have not deemed it within our province to consider any other questions involved in it.

It appears from the petition for removal, and not otherwise. by the record elsewhere, that, at the time the action was first brought in the State court, one of the plaintiffs, and a necessary party, McMann, was a citizen of Ohio, the same State of which the defendants were citizens. It does not affirmatively appear that at the time of the removal he was a citizen of any other State. The averment is, that he was not then a citizen of Ohio, and that his actual citizenship was unknown, except that he was a citizen of one of the States or Territories. It is consistent with this statement, that he was not a citizen of any State. He may have been a citizen of a Territory, and, if so, the requisite citizenship would not exist. New Orleans v. Winter, 1 Wheat. 91. According to the decision in Gibson v. Bruce, 108 U. S. 561, the difference of citizenship on

Opinion of the Court.

which the right of removal depends must have existed at the time when the suit was begun, as well as at the time of the removal. And according to the uniform decisions of this court, the jurisdiction of the Circuit Court fails, unless the necessary citizenship affirmatively appears in the pleadings or elsewhere in the record. Grace v. American Central'Insurance Com pany, 109 U. S. 278, 283; Robertson v. Cease, 97 U. S. 646. It was error, therefore, in the Circuit Court to assume jurisdiction in the case, and not to remand it, on the motion of the plaintiffs below.

It is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it; and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. This rule was adopted in Capron v. Van Noorden, 2 Cranch, 126, decided in 1804, where a judgment was reversed, on the application of the party against whom it had been rendered in the Circuit Court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which he had invoked. This case was cited with approval by Chief Justice Marshall in Brown v. Keene, 8 Pet. 112.

In Jackson v. Ashton, 8 Pet. 148, the court itself raised and insisted on the point of jurisdiction in the Circuit Court; and in that case, it was expressly ruled, that because it did not appear that the Circuit Court had jurisdiction, this court, on

Opinion of the Court.

appeal, had no jurisdiction except for the purpose of reversing the decree appealed from, on that ground. And in the most recent utterance of this court upon the point in Bors v. Preston, ante, 252, it was said by Mr. Justice Harlan: "In cases of which the Circuit Courts may take cognizance only by reason of the citizenship of the parties, this court, as its decisions indicate, has, except under special circumstances, declined to express any opinion upon the merits, on appeal or writ of error, where the record does not affirmatively show jurisdiction in the court below; this, because the courts of the Union, being courts of limited jurisdiction, the presumption in every stage of the cause is, that it is without their jurisdiction, unless the contrary appears from the record." The reason of the rule, and the necessity of its application, are stronger and more obvious, when, as in the present case, the failure of the jurisdiction of the Circuit Court arises, not merely because the record omits the averments necessary to its existence, but because it recites facts which contradict it.

In the Dred Scott Case, 19 How. 393-400, it was decided that a judgment of the Circuit Court, upon the sufficiency of a plea in abatement denying its jurisdiction, was open for review upon a writ of error sued out by the party in whose favor the plea had been overruled. And in this view Mr. Justice Curtis, in his dissenting opinion, concurred; and we adopt from that opinion the following statement of the law on the point: "It is true," he said, 19 How. 566, "as a general rule, that the court will not allow a party to rely on anything as cause for reversing a judgment, which was for his advantage. In this, we follow an ancient rule of the common law. But so careful was that law of the preservation of the course of its courts, that it made an exception out of that general rule, and allowed a party to assign for error that which was for his advantage, if it were a departure by the court itself from its settled course of procedure. The cases on this subject are collected in Bac. Ab. Error II, 4. And this court followed this practice in Capron v. Van Noorden, 2 Cranch, 126, where the plaintiff below procured the reversal of a judgment for the defendant on the ground that the plaintiff's allegations of

Opinion of the Court.

citizenship had not shown jurisdiction. But it is not necessary to determine whether the defendant can be allowed to assign want of jurisdiction as an error in a judgment in his own favor. The true question is, not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the Circuit Court on the merits, when it appears on the record, by a plea to the jurisdiction, that it is a case to which the judicial power of the United States does not extend. The course of the court is, where no motion is made. by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even when it does not appear affirmatively that it does exist. Pequignot v. The Pennsylvania Railroad Company, 16 How. 104. It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted. Cutler v. Rae, 7 How. 729. I consider, therefore, that when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ of error, the first duty of this court is, sua sponte, if not moved to it by either party, to examine the sufficiency of that plea, and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a case to which the Constitution and laws of the United States have not extended that power."

This is precisely applicable to the present case, for the motion of the plaintiffs below to remand the cause was equivalent to a special plea to the jurisdiction of the court; but the doctrine applies equally in every case where the jurisdiction does not appear from the record.

It was so applied in the case of United States v. Huckabee, 16 Wall. 414. There the United States had commenced proceedings in the Circuit Court, under the confiscation acts, to condemn certain real estate, which had been sold by its owners, the defendants in error, to the Confederate government. The United States had, in fact, captured the property during the flagrancy of war, it being an iron foundry and works used for

Opinion of the Court.

the manufacture of munitions of war, and had afterwards sold it to Lyon. Huckabee intervened as a claimant, and answered the libel, setting up a claim of title in himself and associates. Lyon also filed an answer, setting up his title, and was made a co-plaintiff with the United States. A decree was made dismissing the libel, and confirming the title of Huckabee. The United States and Lyon prosecuted a writ of error to reverse this judgment. This court decided that the Circuit Court was without jurisdiction of the subject matter, as it was not a case contemplated by the confiscation acts, and that it could not be treated as a private suit in equity between the claimants for the determination of their conflicting titles, because the remedy at law was adequate, and also because they were citizens of the same State. It decided, therefore, that the Circuit Court had no jurisdiction to render any decree in the case upon the merits of the controversy. In stating the conclusion of the court, Mr. Justice Clifford, who delivered its opinion, said, p. 435: "Usually where a court has no jurisdiction of a case, the correct practice is to dismiss the suit, but a different rule necessarily prevails in an appellate court in cases where the subordinate court was without jurisdiction and has given judgment or decree for the plaintiff, or improperly decreed affirmative relief to a claimant. In such a case, the judgment or decree in the court below must be reversed, else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and determine the matter in controversy."

There, it will be observed, the plaintiffs in error were seeking to reverse on the merits an adverse decree, vesting title in the opposing party, in a proceeding instituted by themselves. The court reversed that decree to their advantage, for want of the jurisdiction in the court below which they had invoked and set in motion.

An analogous principle was acted on in Barney v. Baltimore, 6 Wall. 280, where a decree of the Circuit Court, dismissing a bill on the merits, was reversed because that court had no jurisdiction, and a decree of dismissal without prejudice directed; and in Thompson v. Railroad Companies, 6 Wall..

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