# Brown v. Keene

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United States Supreme Court
33 U.S. 112
Brown v. Keene
IN error to the district court of the United States for the eastern district of Louisiana.
In the district court, the defendant in error, Richard R. Keene, filed a petition in which he stated himself to be a citizen of the state of Maryland, against James Brown, a citizen or resident of the state of Louisiana, holding his fixed and permanent domicil in the parish of St Charles in the district aforesaid, claiming damages for an alleged non performance of a contract relating to the conveyance of a lot of ground, part of the batture at New Orleans.
To this petition Mr Brown filed an answer by his attorney, Isaac T. Preston, Esq.; in which he objects to the jurisdiction of the district court, on the ground that the plaintiff, as well as the respondent, is a citizen of the state of Louisiana. The answer then proceeds to deny all the material allegations in the petition.
The district court made a decree in favour of the petitioner; from which the respondent prosecuted a writ of error to this court.
The case was argued on the question of jurisdiction, and on the merits, by My Clay, for the plaintiff in error; and by Mr Brent, for the defendant.
As no part was decreed but that which was presented on the question of jurisdiction, the arguments of the counsel on those other points are omitted.
Mr Clay, upon the question of jurisdiction, argued, that it did not exist on account of the character of the parties. The petition states Keene to be a citizen of Maryland, and James Brown to be a citizen or resident of Louisiana. The fact ought not to have been stated in the alternative. The constitution limits the jurisdiction, in this respect, to a controversy between citizens of different states; and that must be shown. Nothing can supply the want of that relative attitude of the litigants. Suppose Keene had simply alleged himself to be a resident of the state of Maryland, and had brought his suit against Brown, a resident of Louisiana; the jurisdiction could not have been maintained, because residence and citizenship are not synonymous. If he had stated himself a citizen or resident of Maryland, and brought the suit against Brown as a citizen or resident of Louisiana; the jurisdiction could not be sustained. It must appear, positively, to the court that the parties stand to each other in the relation required by the constitution.
Nor is this defect cured by Brown's answer to the petition. It is true, he there states himself to be a citizen of Louisiana; but he also states Keene to be a citizen of Louisiana. The whole of the answer, in this particular, is to be taken as true, or no part of it can be relied on; and, if received as true, the court had no jurisdiction, because both parties were citizens of the same state.
If residence and citizenship mean the same thing, there is abundant proof on the record that Keene is a citizen of Louisiana. The deed from him to the Browns, dated on the 21st of August, styles him 'of the city of New Orleans.' That deed is a part of his petition. He is again so styled in a deed to the Browns, of the 28th September 1807. And in his petition, filed near twenty-three years after, in March 1830, he describes himself 'Richard Raynal Keene, a resident of the city of New Orleans.'
The rule made in the inferior court requiring an oath to the plea to the jurisdiction, is beyond the authority of such a court. Could a prosecution for perjury be sustained on such an oath, if falsely made? Nor does the rule of court apply to such a case as this. The defect of jurisdiction is apparent on the record. Mr Brown is stated to be a citizen or resident of Louisiana: residence is not citizenship. The allegation is in the alternative, which admits the difference; and there is not, therefore, a distinct allegation of citizenship.
Mr Brent, in reply, contended, that, in his answer, Mr Brown admitted that he is a citizen of Louisiana. The answer says, 'that the plaintiff, as well as the respondent, is a citizen of Louisiana.' This is sufficient to maintain the jurisdiction; and the plaintiff in error cannot contradict this admission, and, by an objection only, technically take the case from the power of this court over it. The objection to the jurisdiction should have been sustained by the affidavit of the plaintiff in error. This is required by a rule made in 1830, by the district court of the United States for the eastern district of Louisiana; and no such affidavit was made. It is said, that this rule of court does not operate, because the judiciary act does not require an affidavit. To this it is answered, that no rules of practice are prescribed by the act of congress, and courts have full authority to establish such as they consider proper and necessary. This rule was made to prevent a dilatory plea, and was such as the court had a full right to make. As to the objection, that the allegation is in the alternative, this does not affect its sufficiency. Connected with the statement, that the plaintiff in error was domiciliated in the parish of St Charles, enough is shown to sustain the proceedings.
But if these are not sufficient, the defendant in the district court, by appearing to and answering the petition, has waived the objection.
Mr Chief Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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