MR. JUSTICE MATTHEWS delivered the opinion of the court.
This was an action at law originally brought in the Court of Common Pleas of Fulton County, Ohio, by John Swan, S.C. Rose, F.M. Hutchinson, and Robert McMann, as partners under the name of Swan, Rose & Co., against the plaintiffs in error. The object of the suit was the recovery of damages for
Afterwards on October 28th, 1879, the cause being at issue, the defendants below filed a petition for its removal to the Circuit Court of the United States. They aver therein that one of the petitioners is a corporation created by the laws of Ohio alone, and the other, a corporation consolidated under the laws of Michigan and Ohio, the constituent corporations having been organized under the laws of those States respectively, and that they are, consequently, citizens, one of Ohio, and one of both Michigan and Ohio. It is also alleged, in the petition for removal, "that the plaintiffs, John Swan and Frank M. Hutchinson, at the time of the commencement of this suit, were, and still are, citizens of the State of Pennsylvania; that the said Robert H. McMann was then (according to your petitioners' recollection) a citizen of the State of Ohio, but that he is not now a citizen of that State, but where he now resides or whereof he is now a citizen (except that he is a citizen of one of the States or Territories comprising the United States), your petitioners are unable to state; that he went into bankruptcy in the bankruptcy court held at Cleveland, in the State of Ohio, several years since, and since the alleged claim of the plaintiffs arose, but your petitioners cannot now state whether he has now an assignee in bankruptcy or not, but they are informed and believe that he has not; that the said Stephen C. Rose, at the time of the commencement of this suit, was a citizen of the State of Michigan; that he died therein during the pendency of this suit, and the said Lester E. Rose is the administrator of the estate of the said Stephen C. Rose in the State of Michigan, he holding such office under and by virtue of the laws of that State only, the said Lester E. Rose being a citizen of the State of Michigan when so appointed and now, but that he is not a necessary party as plaintiff in this suit, for the reason, that the suit being prosecuted by the plaintiffs as partners under the firm name and style of Swan, Rose & Co., and for the collection of an alleged debt or claim due to them as such partners, and which arose wholly out of their dealings
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
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
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 H, 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
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
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.
In Grace v. American Central Insurance Company, 109 U.S. 278, it is true that this court passed upon all the questions in the case affecting its merits, although it reversed the judgment because the jurisdiction of the Circuit Court was not apparent; but it was thought convenient and proper to do so, in that case, because the record itself made it probable that its omission of the statements necessary to show jurisdiction was inadvertent, and might be supplied for a future trial in the same court. In the present case, however, the want of jurisdiction appears affirmatively from the record.
For these reasons the judgment of the Circuit Court must be reversed, and the cause remanded with directions to remand the same to the Court of Common Pleas of Fulton County, Ohio.
It remains, however, to dispose of the question of costs.
It is clear that the plaintiffs in error, having wrongfully caused the removal of the cause from the State court, ought to pay the costs incurred in the Circuit Court, and there is no want of power in the court to award a judgment against them to that effect. By sec. 5 of the act of March 3d, 1875, the Circuit Court is directed, in remanding a cause, to "make such
As to costs in this court, the question is not covered by any statutory provision, and must be settled on other grounds. Ordinarily, by the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs, the exception being that where there is no jurisdiction in the court to determine the litigation, the cause must be dismissed for that reason, and, as the court can render no judgment for or against either party, it cannot render a judgment even for costs. Nevertheless there is a judgment or final order in the cause dismissing it for want of jurisdiction. Accordingly, in Winchester v. Jackson, 3 Cranch, 514, costs were allowed where a writ of error was dismissed for want of jurisdiction, the parties not appearing upon the record to be citizens of different States, the plaintiff in error being plaintiff below. But in respect to that case, it is to be observed, that the want of jurisdiction disclosed by the record was that of the Circuit Court, and that there was jurisdiction in this court to consider and determine the question of the jurisdiction of the Circuit Court, and to reverse its judgment, had it been the other way, for want of jurisdiction. And the judgment for costs in that case is justified on that ground, and seems to have been rendered against the plaintiff in error, because he was the losing party in the sense of having ineffectually invoked the jurisdiction of the Circuit Court. And this is just what has taken place in the present suit. Here the plaintiffs in error wrongfully removed the cause to the Circuit Court. They seek by a writ of error to this court to reverse upon the merits the judgment rendered
In Montalet v. Murray, 4 Cranch, 46, the judgment was reversed, because it did not appear from the record that the Circuit Court had jurisdiction, and with costs, following Winchester v. Jackson, ubi supra, and thereupon, it is stated in the report, that, "on the last day of the term, the court gave the following general directions to the clerk: that in cases of reversal, costs do not go of course, but in all cases of affirmance they do; and that when a judgment is reversed for want of jurisdiction, it must be without costs." No formal rule of the court covers the case of a reversal on that ground, although paragraph 3 of Rule 24, which provides, that in "cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court," leaves room for the exercise of discretion in its application to such cases. The whole subject was very much discussed by Mr. Justice Woodbury in the case of Burnham v. Rangeley, 2 Woodb. & Min. 417-424, where he collects a large number of authorities on the subject. In the present case, the writ of error is not dismissed for want of jurisdiction in this court; on the contrary, the jurisdiction of the court is exercised in reversing the judgment for want of jurisdiction in the Circuit Court; and although, in a formal and nominal sense the plaintiffs in error prevail in obtaining a reversal of a judgment against them, the cause of that reversal is their own fault in invoking a jurisdiction to which they had no right to resort, and its effect is, to defeat the entire proceeding which they originated and have prosecuted. In a true and proper sense, the plaintiffs in error are the losing and not the prevailing party, and this court having jurisdiction upon their
The judgment of the Circuit Court is accordingly reversed, with costs against the plaintiffs in error, and the cause is remanded to the Circuit Court, with directions to render a judgment against them for costs in that court, and to remand the cause to the Court of Common Pleas of Fulton County, Ohio; and
It is so ordered.