MORGAN'S EXECUTOR
v.
GAY.
Supreme Court of United States.
*82 Messrs. J.A. and D.G. Campbell, for the plaintiff in error; no opposing counsel.
Mr. Justice STRONG delivered the opinion of the court.
The plaintiff is an assignee of the bills within the meaning of the eleventh section of the Judiciary Act of 1789, and by the express provisions of the section is not entitled to maintain his action in the Circuit Court, unless a suit might have been prosecuted in such court to recover the contents of the bills if no assignment had been made. But the petition does not show that the indorsers through whom the plaintiff claims were not citizens of Louisiana at the time the suit was brought. It is true, the citizenship of the defendant is averred to have been in Louisiana, and that of the plaintiff in Kentucky, but there is no averment of the citizenship of the payees of the bills, or of the citizenship of the subsequent indorsers. For aught that appears in the record, they may also be citizens of Louisiana; and, therefore, incapable of suing in the Circuit Court for that district to recover the contents of the bills. As that court has only a limited jurisdiction, it must appear affirmatively that it may take cognizance *83 of the controversy between the parties.[*] In Turner v. The Bank of North America,[] it was distinctly ruled that when an action upon a promissory note is brought in a Federal court by an indorser against the maker, not only the parties to the suit, but also the citizenship of the payee, and the indorser, must be averred in the record to be such as to give the court jurisdiction. The same rule was asserted in Montalet v. Murray,[] in Mollan v. Torrance,[§] and in Gibson et al. v. Chew.[] The judgment must, therefore, be reversed, and the cause sent back that amendment may be made in the pleadings showing the citizenship of the indorser of the bills, if it be such as to give the court jurisdiction of the case.
We may notice another error which will doubtless be avoided should there be a second trial. Issues of fact appear to have been made up which were determined by the court in the absence of the defendant's counsel, and without any written agreement to waive a jury trial. This was irregular. In the absence of such an agreement, and of the defendant's counsel, it was not competent for the court to try the issue without the intervention of a jury.[¶]
JUDGMENT REVERSED, and the cause remanded for further proceedings,
IN ACCORDANCE WITH THIS OPINION.
NOTES
[*] Turner v. Enrille, 4 Dallas, 7.
[] Ib. 8.
[] 4 Cranch, 46.
[§] 9 Wheaton, 537.
[] 16 Peters, 315.
[¶] Kearney v. Case, 12 Wallace, 275.