Denny v. Pironi

Decision Date25 May 1891
Citation141 U.S. 121,35 L.Ed. 657,11 S.Ct. 966
PartiesDENNY et al. v. PIRONI et al
CourtU.S. Supreme Court

This was a writ of error sued out under the act of February 25, 1889, (25 St. 693,) allowing a writ of error in all cases involving the jurisdiction of the circuit court.

The action was brought by the defendants in error against Denny, one of the plaintiffs in error, to recover certain wines purchased of the plaintiffs by one Momand through the alleged fraudulent device of Denny, who subsequently seized such wines upon an attachment of his own against Momand. The only averment of citizenship, requisite to give jurisdiction. was contained in the following allegation:

'(1) That petitioners, who are hereinafter styled 'plaintiffs,' are and were, at the times of the accrual of the causes of action hereinafter stated, a mercantile firm, composed as aforesaid, engaged in the wholesale wine and liquor business in the city and county of Los Angeles, California, where both of said plaintiffs also reside; that defendant is a resident citizen of Dallas county, Taxas, within the northern judicial district of Texas.'

The case went to trial upon this allegation, and a judgment was recovered against Denny and the sureties upon his replevin bond for $2,224.70, the value of the property, besides $238.29 damages, with interest and costs. Motion was made for a new trial, February 23, 1891, upon alleged errors in the instruction of the court and in the verdict of the jury, and was denied. Upon the same day a motion was made in arrest of the judgment, which had already been entered, upon the ground that there was no allegation in the petition showing that plaintiffs and defendant were citizens of different states, and no allegation to show that the court had jurisdiction. Upon the next day the plaintiffs filed the following remittitur:

'Now, at this time come Pironi & Slatri, a firm and corpartnership, composed of C. B. Pironi and F. Slatri, the plaintiffs in the above numbered and entitled cause, each of whom is now and was, at the date of the institution of this suit, a citizen of the state of California, and a resident to the city and county of Los Angeles, in said state of California, and show to the court that they, on the 21st day of February, 1891, recovered a judgment against the defendant. J. C. Denny, who was at the date of the institution of this suit a citizen of the state of Texas, and a resident of the city of Dallas, in said state of Texas, withinthe northern judicial district of Texas, for certain personal property of the value of $2,224.70, and also damages for its detention in the sum of $238.29, besides interest and costs; and said plaintiffs now in open court remit the sum of five dollars to and from the said sum of $238.29, the damages awarded in said judgment aforesaid; and plaintiffs pray that this remittitur may be noted on the docket and entered in the minutes, and that execution may issue in due course for the balance of said judgment, after deducting said sum of five dollars now here remitted from the damages adjudged as aforesaid.'

Upon the filing of this document an order was made that 'said remittitur be noted on the docket, and filed herein as a part of the record of this cause, and that the said sum of five dollars be, and the same is hereby, remitted from the judgment of $238.29, assessed and adjudged as damages in said original judgment herein entered on February 21, 1891; and it is further ordered that execution issue for the balance only of said original judgment after deducting the said amount of five dollars so here remitted.' An order was also made denying the motion in arrest of judgment, and a bill of exceptions was settled setting forth the above facts.

John Johns, for plaintiffs in error.

W. Hallett Phillips, for defendants in error.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.

The only averment of the plaintiffs' citizenship appearing in the record prior to the remittitur is contained in the first allegation of the petition, that 'the petitioners, who are hereinafter styled 'plaintiffs,' are and were, at the times of the accrual of the causes of action hereinafter stated, a mercantile firm, composed as aforesaid, engaged in the wholesale wine and liquor business in the city and county of Los Angeles, California, where both of said plaintiffs also reside.' That an averment of residence is not the equivalent of an averment of citizenship, and is insufficient to give the circuit court jurisdiction, has been settled in a multitude of cases in this court (Parker v. Overman, 18 How. 137; Robertson v. Cease, 97 U. S. 646; Everhart v. College, 120 U. S. 223, 7 Sup. Ct. Rep. 555; Menard v. Goggan, 121 U. S. 253, 7 Sup. Ct. Rep. 873;) and, in case of a defective averment in this particular, the judgment will be reversed by this court upon its own motion, and the case remanded, (Peper v. Fordyce, 119 U. S. 469, 7 Sup. Ct. Rep. 287; Everhart v. College, 120 U. S. 223, 7 Sup. Ct. Rep. 555; Menard v. Goggan, 121 U. S. 253, 7 Sup. Ct. Rep. 873.) A case cannot be amended here so as to show jurisdiction, but the court below, in its discretion, may allow it to be done where the suit was...

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  • McEldowney v. Card
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • September 21, 1911
    ... ... Goggan, 121 U.S. 253, 7 Sup.Ct. 874, 30 L.Ed. 914; ... Anderson v. Watt, 138 U.S. 694, 702, 11 Sup.Ct. 449, ... 34 L.Ed. 1078; Denny v. Pironi, 141 U.S. 121, 11 ... Sup.Ct. 966, 35 L.Ed. 657; Cooper v. Newell, 155 ... U.S. 532, 534, 15 Sup.Ct. 355, 39 L.Ed. 249; Oxley Stave ... ...
  • Newman-Green Inc. v. Alfonzo-Larrain
    • United States
    • U.S. Supreme Court
    • June 12, 1989
    ...cases that can be read to suggest that the Court did not have the authority to allow such amendments, see Denny v. Pironi, 141 U.S. 121, 124, 11 S.Ct. 966, 967, 35 L.Ed. 657 (1891); Menard v. Goggan, 121 U.S. 253, 254, 7 S.Ct. 873, 874, 30 L.Ed. 914 (1887); Peper v. Fordyce, 119 U.S. 469, 4......
  • Levering & Garrigues Co. v. Morrin, 50.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 23, 1932
    ...Irving v. Joint District Council, 180 F. 896 (C. C. A. N. Y.). Such a motion cannot be made in an appellate court. Denny v. Pironi, 141 U. S. 121, 11 S. Ct. 966, 35 L. Ed. 657. Section 274c of the Judicial Code (28 USCA § 399), permits correction of the pleadings to conform to the proof, bu......
  • Newman-Green, Inc. v. Alfonzo-Larrain R.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 11, 1988
    ...is the only case holding that Sec. 1653 may not be used to dismiss a party on appeal. 6 Thomas relied on Denny v. Pironi, 141 U.S. 121, 11 S.Ct. 966, 35 L.Ed. 657 (1891), and derivatively on New Orleans v. Winter, 14 U.S. (1 Wheat.) *91, 4 L.Ed. 44 (1815). These cases mean, the Eighth Circu......
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