ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.
MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.
This case was argued upon the question of limitation. But we have no occasion to consider that question; for it does not appear that the Circuit Court had jurisdiction of the action. Unless the contrary appears affirmatively from the record, the presumption, upon writ of error or appeal, is that the court below was without jurisdiction. Robertson v. Cease, 97 U.S. 646; Grace v. American Central Ins. Co., 109 U.S. 278, 283; Bors v. Preston, 111 U.S. 252; Continental Life Ins. Co. v. Rhoads, 119 U.S. 237. That the point as to jurisdiction was not made here by either party is immaterial, because, as said in Mansfield, &c., Railway Co. v. Swan, 111 U.S. 379, 382, "the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes." See also Hancock v. Holbrook, 112 U.S. 229, 231.
The act of March 3, 1875, § 1, excludes from the cognizance of a circuit or district court of the United States "any suit founded on contract in favor of an assignee, unless a suit might
have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant, and bills of exchange." One of the warrants is payable to Z. King, and the other to Z. King, or order. The latter is not indorsed by him in blank or to the order of the plaintiff. Plainly, therefore, upon any view of the statute, the plaintiff, as the holder or owner of the warrants, could not maintain a suit in the court below, unless King could have sued in that court, had he not sold the warrants. But it does not appear that King could have maintained the suit. There is no averment as to his citizenship, nor does his citizenship otherwise appear from the record. We must, therefore, presume, on this writ of error, that the Circuit Court was without jurisdiction.
It will be for the court below to determine whether an amendment of the pleadings upon the point of jurisdiction will be proper.
The plaintiff in error must pay the costs in this court. Peper v. Fordyce, 119 U.S. 469; Everhart v. Huntsville College, ante, 223.
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