Supreme Court of United States.
*56 Mr. W.L. Cole for appellant.
Mr. John A. Hutchinson for appellee.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
The petition for removal was insufficient, as has been repeatedly determined, because it does not show of what State the plaintiff was a citizen at the time of the commencement of the action. Stevens v. Nichols, 130 U.S. 230; Jackson v. Allen, 132 U.S. 27; La Confiance Compagnie v. Hall, 137 U.S. 61; Kellam v. Keith, 144 U.S. 568.
The final decree was entered July 10, 1889, and the appeal allowed January 2, 1891, and bond was given and filed in accordance with the order of allowance and approved January 13, 1891. The appeal having thus been taken prior to the passage of the act of March 3, 1891, is not governed by that act. It is true that the citation was not signed until April 14, 1891, and not served until the seventeenth of the month, but neither the signing nor the service of the citation was jurisdictional, its only office being to give notice to the appellees. Jacobs v. George, 150 U.S. 415.
*57 By the act of February 25, 1889, c. 236, 25 Stat. 693, it was provided "that in all cases where a final judgment or decree shall be rendered in the Circuit Court of the United States in which there shall have been a question involving the jurisdiction of the court, the party against whom the judgment or decree is rendered shall be entitled to an appeal or writ of error to the Supreme Court of the United States to review said judgment or decree without reference to the amount of the same; but in cases where the decree or judgment does not exceed the sum of five thousand dollars the Supreme Court shall not review any question raised upon the record except such question of jurisdiction." Although it does not appear that the question of jurisdiction was raised in the court below by any plea or motion, yet as the record failed to affirmatively show jurisdiction, this court must take notice of the defect. Chapman v. Barney, 129 U.S. 677; Denny v. Pironi, 141 U.S. 121; Roberts v. Lewis, 144 U.S. 653; Northern Pacific R.R. Co. v. Walker, 148 U.S. 391.
If the question of jurisdiction had been raised, the cause might have been brought to this court under the act of February 25, 1889, without reference to the amount in controversy, and as it is apparent upon the record that jurisdiction was lacking we cannot dismiss the case upon the ground that the amount involved was less than the jurisdictional sum, even if we were of opinion that such were the fact, for although the question was not raised, it was necessarily involved.
The result is that the decree must be
Reversed and the cause remanded to the Circuit Court with a direction to remand it to the state court, the costs in this and the Circuit Court to be paid by the Baltimore and Ohio Railroad Company, upon whose petition the case was removed.
