# Ex parte Ward Fuller/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
173 U.S. 452
Ex parte Ward Fuller
Argued: accordingly to the custody of the warden of said prison. He now makes application for leave to file a petition for habeas corpus on the ground that the sentence was void because Judge Meek was appointed July 13, 1898, after the adjournment of the previous session of the senate of the United States, and commissioned by the president to hold office u til the end of the next succeeding session of the senate, and that from the date of the appointment and commission until after the conviction and the sentence there was no session of the senate, though it is not denied that the appointment was afterwards confirmed. By the act of February 9, 1898 (30 Stat. 240, c. 15), provision was made for an additional judge for the Northern judicial district of the state of Texas, to be appointed by the president, by and with the advice of the senate, and that, when a vacancy in the office of the existing district judge occurred, it should not be filled, so that thereafter there should be only one district judge. It is stated that Judge Rector was district judge of the Northern district of Texas when the statute was passed (February 9, 1898); that he died (April 9, 1898) before Judge Meek's appointment, and while the senate was still in session,-and argued that the appointment could not be treated as one to fill the vacancy caused by Judge Rector's death, because that was forbidden by the act, and must be regarded as an appointment to the office of 'additional district judge' created thereby. Clause 3 of section 2 of article 2 of the constitution provides that 'the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session,' but it is insisted that the office in this instance was created during a session of the senate, and that it could not be filled at all, save by the concurrent action of the president and the senate. And it is further contended that the president could not during the recess of the senate, and without its concurrence, ---
Although the record does not contain the original bill, it is apparent that the jurisdiction of the circuit court was invoked on the ground of diverse citizenship, and that the interest of appellants in the mortgaged premises was acquired after the commencement of the action.
This supplemental bill made appellant a party defendant, as claiming an interest, but the jurisdiction still rested on diversity of citizenship. The decree of the circuit court of appeals was therefore made final by the statute, and the appeal cannot be sustained.
But it is said because plaintiff saw fit to set forth the manner in which appellant obtained its interest, and it appeared that appellant claimed under a conveyance from the purchasers at a sale made pursuant to a decree of the circuit court, the jurisdiction was not entirely dependent on the citizenship of the parties. The averments, however, in respect to the acquisition of its interest by appellant, were no part of plaintiff's case; and, if there had been no allegation of diverse citizenship the bill unquestionably could not have been retained. The mere reference to the sale and foreclosure could not have been laid hold of to maintain jurisdiction on the theory that plaintiff's cause of action was based on some right derived from the constitution or laws of the United States.
It is thoroughly settled that under the act of August 13, 1888, the circuit court of the United States has no jurisdiction, either original or by removal from a state court, of a suit as one arising under the constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement to be a necessary part of his claim. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 Sup. Ct. 654; Metcalf v. Watertown, 128 U.S. 586, 589, 9 Sup. Ct. 173; Mining Co. v. Turck, 150 U.S. 138, 14 Sup. Ct. 35. If it does not appear at the outset that the suit is one of which the circuit court, at the time its jurisdiction is invoked, could properly take cognizance, the suit must be dismissed; and lack of jurisdiction cannot be supplied by anything set up by way of defense. And so, when jurisdiction originally depends on diverse citizenship, the decree of the circuit court of appeals is final, though another ground of jurisdiction may be developed in the course of the proceedings. Ex parte Jones, 164 U.S. 691, 17 Sup. Ct. 222.
Appeal dismissed.

## 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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