CONTINENTAL INS. CO. v. RHOADS

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

One of the errors assigned on this record is that the Circuit Court had no jurisdiction. It was settled at a very early day that the facts on which the jurisdiction of the Circuit Courts rest must, in some form, appear on the face of the record of all suits prosecuted before them. Turner v. Bank of North America, 4 Dall. 8; Bushnell v. Kennedy, 9 Wall. 387; Hornthall v. Collector, 9 Wall. 560; Ex parte Smith, 94 U.S. 455; Robertson, v. Cease, 97 U.S. 646; Grace v. American Central Ins. Co., 109 U.S. 278, 283; Börs v. Preston, 111 U.S. 252, 255; Mansfield, Coldwater and Lake Michigan Railway v. Swan, 111 U.S. 379, 382; Hancock v. Holbrook, 112 U.S. 229. And it is error for a court to proceed without its jurisdiction is shown. Grace v. American Central Insurance Co., supra; Thayer v. Life Association, 112 U.S. 717; Mansfield, &c., Railway v. Swan, supra.

It is conceded that the jurisdiction in this case depends alone on the citizenship of the parties, and that there is not in the declaration any averment in express terms of the citizenship of the plaintiff. It does appear that the defendant was, at the commencement of the suit, a citizen of Connecticut, and that the intestate, Maris Rhoads, was at the time of his death a citizen of Pennsylvania, but there is nothing to show the citizenship of the plaintiff, and the jurisdiction depends on her citizenship, and not on that of her intestate. Amory v. Amory, 95 U.S. 186. It is true that the record does show that letters of administration were granted to her in Pennsylvania, but that does not make her a citizen of that State. It may be that by the law of Pennsylvania the personal representative of a deceased citizen of Pennsylvania is, in contemplation of law, resident within the State, and at all times amenable to the jurisdiction of the proper courts of that State, but that does not necessarily imply citizenship of the State. He must be there for the purposes of his administration, but that is all. And, besides, the jurisdiction must appear positively. It is not enough that it may be inferred argumentatively. Brown v. Keene, 8 Pet. 112; Robertson v. Cease, supra. If the plaintiff was actually a citizen of Pennsylvania when the suit was begun, the record cannot be amended here so as to show that fact, but the court below may, in its discretion, allow it to be done when the case gets back. Morgan v. Gay, 19 Wall. 81; Robertson v. Cease, supra.

It is not necessary to consider any of the other assignments of error.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings.