On Motion for Rehearing,
The opinion was erroneous in stating that all parties continued to assume that there was jurisdiction, and that the removal proceedings were not included in the transcript. It overlooked the fact that the removal proceedings had been added by a supplemental transcript, and that plaintiff in error’s brief challenged the jurisdiction of the court below. That subject must therefore be considered.
*332Plaintiff’s declaration in the state court said nothing- on the subject of the residence or citizenship of either party; it did allege that defendant was “a body politic and corporate.” Defendant’s removal petition alleg-ed that, both at the time of commencing suit and filing of removal petition, the plaintiff was a citizen of Tennessee, and the defendant was “a citizen of the state of Pennsylvania and of no-other state, residing in the city of Philadelphia, in said state.”
The answer, later filed, tendered no issue upon the claim of the declaration that defendant was a body politic and corporate; and, indeed, the form.of the petition for removal is an implied admission-of defendant’s corporate character.
[4] If the facts thus established by the pleadings, and not requiring proof, were sufficient to show jurisdiction, it would not be material that there was no proof. See note 2, Chicago Ry. Co. v. Stephens (C. C. A. 6) 218 Fed. 535, 539, 134 C. C. A. 263.
[5] Plowever, the pleadings contain no allegation, .and the record brought to this court contains no proof, that the defendant corporatior. was organized under the laws of Pennsylvania, and this has been held to be a fatal defect. Lafayette Co. v. French, 59 U. S. (18 How.) 404, 405, 15 L. Ed. 451; Chicago Ry. Co. v. Stephens, supra, 218 Fed. at page 539, 134 C. C. A. 263.
This case is like La Belle Co. v. Stricklin (C. C. A. 6) 218 Fed. 529, 533, 134 C. C. A. 257, 261, in that the defect pointed out is of a highly artificial character, and (for it is not to be supposed that defendant intended a trick) consists in an accidental omission or mistake by defendant in its petition for removal. Except that in the Da Belle Case plaintiff would have lost threé years, if the case had been sent back to the state court, while in the present case in that event plaintiff will lose six years, the following quotation from what is said in the Da Belle Case is applicable here:
“That, for such defect,- the judgment which has been recovered should be reversed and the case remanded to the state court, must always be unfortunate; but that, in the present case, 'Stricklin, after commencing his suit in the'proper court, after having been taken against- his will into the federal court, spent a year in reaching trial, gone through the trial, and recovered a judgment for an amount which was certainly not excessive, if his story was true, and then having lost two years more in getting the case to its present position — that after all this, and after continual acquiescence in the jurisdiction of the federal court, and without any affirmative reason to 'doubt that the facts existed which gave the jurisdiction, he should be sent back to begin over again, because the other side made an imperfect allegation, is a result not to be reached, unless imperatively required by settled rules.”
There are several matters, which perhaps might serve to distinguish the present case from the strict rule of Lafayette v. French. We observe that the petition for removal in the present case alleges not only that defendant is a citizen of Pennsylvania, but that it is not a citizen of any other state, thus removing the contingency that it might have been organized also under the laws of Tennessee. We observe further that while the present bill of exceptions states that it .contains all the evidence, yet since the present practice requires the testimony to be in narrative form, and forbids the insertion in the *333bill of exceptions of any evidence not bearing upon the assignments of error, which must be presented to the District Judge when he jetties the bill, and since the present assignments of error made no mention of this subject, the parties and the District Judge might well have omitted from the bill of exceptions all proof given on the trial pertaining to the sub j ect of diverse citizenship; and there would be distinctly better ground than there used to be for presuming that the necessary proof was in fact given.
[6] Ftowevef, we think it not necessary to pass upon these possible distinctions, but regard it as the better practice to follow the rule which was approved by this court in Toledo Traction Co. v. Cameron, 137 Fed. 48, 54, 69 C. C. A. 28, and applied in Chicago Ry. Co. v. Stephens, supra, 218 Fed. 547, 134 C. C. A. 263, and practically approved by the Supreme Court in Mexican Ry. v. Duthie, 189 U. S. 76, 23 Sup. Ct. 610, 47 L. Ed. 715. See, also, McEldowney v. Card (D. C.) 193 Fed. 475, 483. The defect in the record is capable of being cured by amendment, in spite of the fact that the case cam.e into the court below by removal from a state court. La Belle Co. v. Stricklin, supra, 218 Fed. 533, 534, 134 C. C. A. 257; Rife v. Dumber Underwriters (C. C. A. 6) 204 Fed. 34, 36, 122 C. C. A. 346.
The application for rehearing also points put that the opinion inaccurately stated certain details of the injury; but we find no error material to the result.
On its merits the application is denied. The order of affirmance will be set aside, and the j udgment below, but not the verdict, is reversed, without costs of this court to either party; and the case will be remanded for determining the question of jurisdiction. If, in manner to be determined by the court below, plaintiff shall properly amend his declaration and establish the necessary diverse citizenship existing when the suit was commenced and when the removal was made the judgment will be re-entered; if jurisdiction be not thus shown the case will be remanded to the state court.1
This case had been removed from the state court before the passage of the Act of March 3, 1915 (section 274c, Judicial Code [Comp. St. 1916, § 1251c]). In view of the conclusions reached by the opinion, it is unnecessary to consider whether that statute reaches this case.