Yocum v. Parker

• Decision Date: 08 April 1904
• Docket Number: 1,964.
• Citation: 130 F. 770
• Parties: YOCUM et al. v. PARKER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

130 F. 770

YOCUM et al. v. PARKER et al.

No. 1,964.

United States Court of Appeals, Eighth Circuit.

April 8, 1904

Vinton Pike and J. B. Shackelford, for plaintiffs in error.

J. W Coburn and B. R. Vineyard, for defendants in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

Courts of the United States are of limited jurisdiction, and the cases of which they have cognizance are specially circumstanced. Hence the presumption that a cause is without the jurisdiction of one of those courts unless the contrary affirmatively appears from the record. This doctrine was announced more than a century ago by the Supreme Court (Turner v. Bank, 4 Dall. 8, 1 L.Ed. 718), and it has since been frequently applied and unvaryingly adhered to. The question of jurisdiction is self-asserting in every case. It arises although the litigants are silent. Even their consent cannot authorize cognizance if fundamental grounds of jurisdiction are absent.

An attempt was made in the case before us to invoke the jurisdiction of the Circuit Court on the ground of diversity of citizenship. But the citizenship of the plaintiffs does not appear. An averment of residence is not an averment of citizenship. Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057. Passing this, the defendants denied by their answer that the plaintiffs were even residents respectively of the states of Colorado and Idaho, and they also denied that they themselves were citizens of the state of Missouri. By the rules of the common law, objections to the jurisdiction of the court were pleadable in abatement only (Sheppard v. Graves, 14 How. 504, 510, 14 L.Ed 518), but by the act of June 1, 1872, c. 255, Sec. 5, 17 Stat. 197 (Rev.St.§ 914 (U.S.Comp.St. 1901, p. 648)), the rules of pleading and practice in actions at law in the Circuit and District Courts of the United States were assimilated to those prevailing in the courts of the states. Under the civil practice act of Missouri, if the want of jurisdiction is apparent on the face of the petition advantage thereof may be taken by demurrer, otherwise it may be taken by answer, together with defenses upon the merits. Rev.St.Mo. 1899, Secs. 598, 602, 604. In that state a general denial puts in issue every fact which it is incumbent upon the plaintiff to prove. Waiving the rule that residence is not synonymous with citizenship nevertheless the absence of...