Jeffcott v. Donovan, 135 F.2d 213 (9th Cir. 1943)

*214 Darnell & Robertson, of Tucson, Ariz., for appellants.

Lesley B. Allen, of Tucson, Ariz., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

The defendants, in an action filed and prosecuted in the District Court of the United States for the District of Arizona against them for services performed, appeal from the judgment found against them in the action.

It is alleged in the amended complaint, upon which together with defendants' answer the action went to trial and judgment, that the plaintiff is a resident of the State of New Jersey and that the defendants are residents of the "State and District of Arizona, and that the matter in controversy exceeds the sum of $3,000.00 exclusive of interest and costs." These allegations are admitted by the answer. No other allegation regarding the subject of jurisdiction is contained in the pleadings.

Diversity of citizenship as a basis for the jurisdiction of a cause in the District Court of the United States is not dependent upon the residence of any of the parties, but upon their citizenship. 28 U.S.C.A. § 41, Subdivision (1), Judicial Code, § 24, amended. Bouvier (Baldwin's Students Ed. 1934) says, "Citizen and resident (q.v.) are not synonymous, and in some cases the distinction is important." It might well be that a resident of any one state in point of fact may be a citizen of that or any other state. Cf. La Tourette v. McMaster, 248 U.S. 465, 470, 39 S. Ct. 160, 63 L. Ed. 362; The Slaughter-House Cases, 83 U.S. 36, 73, 16 Wall. 36, 73, 21 L. Ed. 394; Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 78, 40 S. Ct. 228, 64 L. Ed. 460. See an able discussion in Baker v. Keck, D.C., 13 F. Supp. 486; also, 14 C.J.S., Citizens, § 1, p. 1130.

At the time set for the argument in this cause the defect in the pleadings thus apparent was discussed in open court, but no amendment thereto was proffered. The cause was argued upon the merits subject to the court's determination as to the trial court's jurisdiction and thereafter was submitted. No jurisdiction of the District Court was alleged or shown.

Reversed and remanded.