# Commercial and Rail Road Bank of Vicksburg v. Richards

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United States Supreme Court
39 U.S. 60
Commercial and Rail Road Bank of Vicksburg v. Richards
IN error to the Circuit Court of the United States for the Southern District of Mississippi.
Cora A. Solocomb, Robert Richards, and Romanzo W. Montgomery, styling themselves citizens of of Louisiana, trading under the firm of Slocomb, Richards and Company, sued the President, Directors, and Company of the Commercial and Rail Road Bank of Vicksburg, styling them citizens of the state of Mississippi, living and resident in the Southern District thereof, being a banking company, incorporated by the Legislature of the state of Mississippi, located in the Southern District aforesaid. The suit was upon a certificate of deposite for three thousand five hundred and forty-one dollars and thirty-four cents.
To the declaration of the plaintiffs, averring as above stated, the defendants put in the following plea:
'The said defendants by attorney come and say, that this Court ought not to have or take further cognisance of the action aforesaid, because they say that they are a corporation aggregate, and were at the time this suit was instituted, and yet so continue to be, and that the corporators, stockholders, or company, are composed of citizens of other and different states, to wit: That William M. Lambeth, and William E. Thompson, citizens of the state of Louisiana, are now, and were at the time this suit was instituted, stockholders and corporators therein; and this,' &c.
The following affidavit was subjoined to the plea:
'James Roach, acting cashier for the Commercial and Rail Road Bank of Vicksburg, the defendants in the above case, makes oath, and says, the above plea is true in substance and fact.
'Signed, J. ROACH.
'Sworn to, and subscribed before me, this 4th day of November, 1839.
'Signed, GEORGE W. MILLER, Deputy Clark.'
To this plea the plaintiffs demurred, and assigned the following special causes, to wit:
1. The said plea in abatement is not properly entitled to any term of this Court.
2. The affidavit in support of said plea is not sufficient, nor is the same properly attested.
3. The matters set forth in said plea are not sufficient to abate the plaintiffs' suit.
The demurrer was sustained and judgment rendered for the plaintiffs.
The defendants prosecuted this writ of error.
Mr. Sergeant for the plaintiffs in error, assigned as error in the judgment of the Circuit Court, the following points:
1. The alleged defect in the plea in abatement of the defendants below, and the want of a proper affidavit, and attestation of the plea, are not causes of demurrer.
2. If they are causes of demurrer, the plea was legal, and sufficient; and if not so, the judgment of the Circuit Court should have been to answer over.
3. The causes assigned as sufficient to abate the plaintiffs' suit, and which, being matter of general demurrer, did not require to be specially assigned, is not founded in law. On the contrary, the facts stated in the plea, and admitted by the demurrer, are sufficient in law to take away the jurisdiction of the Court, and entitled the defendants to judgment.
4. That if the plea, and affidavit were informal, still the facts stated in them, however, and whenever appearing, were fatal to the jurisdiction; which cannot be maintained by consent, or by waiver of the parties, or either of them.
Mr. Sergeant contended that the principal question in this case, whether all the members of a corporation aggregate, should be citizens of the state in which the suit was brought, had been frequently decided by the Court.
The jurisdiction of the Circuit Courts of the United States, the Circuit Courts having limited jurisdiction, extended only to controversies between citizens of other states, and those of the state in which the action was brought, so far as the law had an application to the case before the Court. It has also been decided, that although a corporation cannot be considered a citizen of the state erecting it, yet the Court will look behind its charter, and if it finds the corporators citizens of one state, will recognise the right of those corporators to sue in the Circuit Courts. But it will apply to them the same principles and rules which are applicable to all parties coming into the Courts of the United States. All the corporators must be citizens of the state in which the suit is instituted, to give the Court jurisdiction. Cited, Strawbridge vs. Curtis, 3 Cranch, 267. The Bank of the United States vs. Deveaux, 5 Cranch, 61.
Nor did the appearance of the plaintiffs in error, by attorney, in the Circuit Court, deprive them of a right to except to the jurisdiction of the Court. The action was against them, an aggregate corporation, and there could be no appearance but by attorney.
The counsel for the defendants in error rely on the provisions of an act of Congress passed on the 28th of February, 1839, relating to the judicial system of the United States.
An examination of the provisions of that statute, and a fair construction of them, will satisfy the Court that it was meant to apply only to parties who, under the judicial system, were properly parties to suits in the Circuit Court, but who might not have been served with process. The statute was not intended to change the character or the nature of the jurisdiction of the Circuit Courts of the United States.
Nor could that statute operate in the case before the Court; for the citizens of Louisiana who were members of the aggregate corporation sued by the defendants in error, would be affected by the judgment of the Circuit Court, if in favour of the plaintiffs below. The funds of the bank would be appropriated to pay the debt; and to those funds, as stockholders, they had the same right as any other of the corporators.
The objections to the exceptions of the plaintiffs below to the plea, and this affidavit; are left upon the points submitted to the Court. Whatever might be the value of these objections, had they been urged to the receiving of the plea, they cannot be assigned as causes of demurrer.
Mr. Henderson, for the defendants, contended that the objections to the jurisdiction of the Circuit Court had not been properly brought forward.
A foreign minister may be sued, if he does not make the objection in a proper form. The magistrate, or Court before whom the suit has been brought, cannot know of his exemption unless it shall be pleaded. It must be ascertained in a judisicl form. Having omitted to plead the exemption, the jurisdiction is admitted. This is the principle which, by the rules of pleading, govern the case. 2 Cranch, 240. 1 Peters' Digest, 622.
The plea is defective because it excepts to the jurisdiction of the Court, without the proper affidavit to sustain it. The affidavit should have been made by the persons who are alleged to have been improperly sued; and it should have been properly sworn to.
The act of Congress of 1839, applies to this case, and gave the Court jurisdiction. It provides for the absence of parties who may not have been served with process; and allows the Court to proceed without them, although the cause of action is joint.
The objection, that it is not stated at what term the plea in abatement was filed, is valid; because as the rule is that no such plea shall be received after an appearance, the period when the plea was filed cannot otherwise be known. Courts are not disposed to sustain pleas in abatement. A Court will not consider that the defendants sued were out of its jurisdiction, unless this shall be shown by proper pleading; and by this pleading in proper time. Cited, Story's Pleading, pl. 3. 7. Gold. Pleading, 238. sec. 7. Chitty's Pleading, 475. Chitty's Archbold, 688. 3 Mason's Rep. 9.
Mr. Justice BARBOUR 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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