Sidebilder
PDF
ePub

of process.

"Hereafter it shall be sufficient that a bill in equity shall contain in addition to the usual caption:

First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated.

Second, a short and plain statement of the grounds upon which the court's jurisdiction depends.

Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statements of evidence.

heard, or are informed, and in their
conscience believe that,'' &c. Story's
Eq. Pl., 35, note 2.
"41. By
the equity rules of 1842 the inter-
rogatories contained in the interro-
gating part of the bill must be di-
vided as conveniently as may be
from each other, and numbered con-
secutively 1, 2, 3, etc.; and the in-
terrogatories which each defendant
is required to answer shall be speci-
fied in a note at the foot of the bill,
in the form to the effect following,
that is to say: 'The defendant (A.
B.) is required to answer the inter-
rogatories numbered respectively 1,
2, 3, etc.'"'"42. The note at the
foot of the bill, specifying the in-
terrogatories which each defendant
is required to answer, shall be con-
sidered and treated as part of the
bill; and the addition of any such
note to the bill, or any alteration
in or addition to such note after
the bill is filed shall be considered
and treated as an amendment to
the bill."'"'43. Instead of the words
of the bill now in use preceding the
interrogatory part thereof, and be-
ginning with the words 'to the end,
therefore,' there shall hereafter be
used words in the form or to the
effect following: To the end, there

fore, that the said defendants may,
if they can, show why your orator
should not have the relief hereby
prayed, and may, upon their several
corporate oaths, and according to
the best and utmost of their several
and respective knowledge, remem-
brance, information, and belief, full,
true, direct, and perfect answer
make to each of the several inter-
rogatories hereinafter numbered and
set forth, as by the note hereunder
written they are respectively re-
quired to answer; that is to say,-
"Whether, etc.

[blocks in formation]

6 Equity Rules of 1842. 23, The prayer for process of subpœna in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require upon the return of the process. If an injunction or a writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process.''

Fourth, if there are persons other than those named as defendants who appear to be proper parties, the bill should state why they are not made parties-as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction.

Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked."

[ocr errors]

1

§ 134. Address and caption. In England, a bill in chancery was required to be addressed to the person having the custody of the great seal, usually either the sovereign, or the Lord Chancellor, except when the Lord Chancellor himself was the complainant, when it was addressed to the sovereign "in his high court of chancery." In the United States, as a great seal is not, as in England, essential to the validity of writs in equity, before the Equity Rules of 1912, a bill was addressed to the judge or judges of the court where it is filed.2 The Equity Rules of 1912 in prescribing the requirements of a bill in equity, omit therefrom the address, but require the usual caption. The caption should state the name of the court, including the district and division and the names of each of the parties.

§ 135. Introduction and jurisdictional averments. The introduction formerly contained the names, descriptions, and residences of the complainants, together with the character in which they sued, if in a representative capacity, and such other allegations as were necessary to found the jurisdiction of the court.1 Sometimes the names and descriptions of the defendants were also here inserted, but it was more usual to name them in the next part of the bill.2

The Equity Rules of 1842 regulated the subject as follows: "Every bill in the introductory part thereof shall contain the names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. 7 Eq. Rule 25.

§ 134. 1 Mitford's Pl., ch. 1, § 3;

Story's Eq. Pl., § 26.

2 Eq. Rule 20 of 1842.

§ 135. 1 Mitford's Pl., ch. 1, § 3; Story's Eq. Pl., § 26.

2 Story's Eq. Pl., § 26. Contra, Leavenworth v. Pepper, 32 Fed. 718.

3 Eq. Rule 25.

;

The form, in substance, shall be as follows: "To the judges of the
Circuit Court of the United States for the district of
A. B., of, and a citizen of the State of, brings this his
bill against C. D., of, and a citizen of the State of

[ocr errors]

and a citizen of the State of

[ocr errors]

And there

and E. F., of
upon your orator complains and says that, etc."3
The Equity Rules of 1912 provide: that a bill in equity shall
contain "First, the full name, when known, of each plaintiff and
defendant, and the citizenship and residence of each party. If
any party be under any disability that fact shall be stated. Sec-
ond, a short and plain statement of the grounds upon which the
court's jurisdiction depends.
Fourth, if there are pe r
sons other than those named as defendants who appear to be
proper parties, the bill should state why they are not made pa r-
ties as that they are not within the jurisdiction of the court, or
cannot be made parties without ousting the jurisdiction."' 4

* *

*

Where there are two districts in a State, the bill must show in which district a party resides."

An allegation of residence without an allegation of citizenship is insufficient. So is an allegation that plaintiff is "of," or is a bona fide resident of, a certain State; or that he is a citizen of a State by domicile or residence, but a description of a party as a citizen of a certain county in a specified State was held to be sufficient to describe him as a citizen of the State and a resident of the county.10 Where a bill recited facts to show diversity

3 Eq. Rule 20 of 1842.

4 Eq. Rule 25.

5 Harvey v. Richmond & M. Ry. Co., 64 Fed. 19.

6 Tug River C. & S. Co. v. Brigel, 67 Fed. 625; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057; Pacific Postal Tel. Co. v. Irvine, 49 Fed. 113; Stockwell v. Boston & M. R. Co., 131 Fed. 152; Atchison, T. & S. F. Ry. Co. v. Frederickson, C. C. A., 177 Fed. 206; M'Eldoyney v. Card, 193 Fed. 475; Gaugler v. Chicago, M. & P. S. Ry. Co., 197 Fed. 79; International Bank & Trust Co. v. Scott, C. C. A., 159 Fed. 58, holding that such a defect is not cured by an admission in an answer that

[merged small][merged small][ocr errors][merged small][merged small]

of citizenship without making distinct the traversible averments of such diversity, it was held to be sufficient.11 So it was held: that, in view of the Fourteenth Amendment, an allegation that a plaintiff was a citizen of the United States and a resident of a specified State therein, was sufficient to show that he was a citizen of such State.12 An averment that a party is a tax assessor in a State is not equivalent to an averment that he is a citizen thereof.13 Where the plaintiffs sue as executors or administrators, it is insufficient to allege that letters of administration or letters testamentary had been taken out in a specified State 14 or that said plaintiffs as such executors, are citizens" of a specified State; 15 but it was held to be sufficient to aver that the defendants, "as they are the qualified executors of the last will and testament of James Brown, deceased, were, each and all, at the time of the commencement of this suit, and still are, citizens of the State of New York; and that the defendant John S. Schultze, also a qualified executor of the last will and testament of James Brown, deceased, was then, and still is, a citizen of the State of New Jersey." 16

If one of the parties is a corporation, the bill must state by or under the laws of what State it was created, and its members will then be conclusively presumed to be citizens of that State.17 An allegation that a party described as a committee is a citizen of a specified State 18 or that it is a corporation "duly established

248. But see Stuart v. Easton, 156 U. S. 46, 39 L. ed. 341; Hennessy v. Richardson Drug Co., 189 U. S. 25, 47 L. ed. 697.

11 Gorham Mfg. Co. v. Weintraub, 176 Fed, 927.

12 Clausen v. American Ice Co., 144 Fed. 723.

18 Assessor of Vernon Parish, La. v. Gould, 210 Fed. 895.

14 Yeandle v. Pennsylvania R. Co., C. C. A., 169 Fed. 938.

15 Amory v. Amory, 95 U. S. 186, 24 L. ed. 428.

16 Cooke v. Seligman, 7 Fed. 263. 17 Lafayette Ins. Co. v. French, 18 How. 404, 15 L. ed. 451; Muller v. Dows, 94 U. S. 444, 24 L. ed. 207;

[merged small][ocr errors]

18 Thomas v. Board of Trustees of Ohio State University, 195 U. S. 207, 49 L. ed. 160; Lonergan v. Illi nois Cent. R. Co., 55 Fed. 550; Frisbie v. Chesapeake & O. R. Co., 57 Fed. 1; De Loy v. Traveler's Ins. Co., 59 Fed. 319; American S. R. Co. v. Johnson, 60 Fed. 503; Winkler v. Chicago & E. I. R. Co., 108 Fed. 305; Dalton v. Milwaukee Me chanics' Ins. Co., 118 Fed. 876; Knight v. Lutcher & Moore Lumber Co., 130 Fed. 404. Supra, § 48. Parker Washington Co. v. Cramer, C. C. A., 201 Fed. 878; Chicago, R. I. & P. Ry. Co. v. Stephens, C. C.

by law," having its principal place of business in a specified State,19 or that it is a corporation of a specified State,20 or that it is a corporation existing and doing business in a specified State,21 or that it "claims to be" a corporation organized under the laws of a specified State, as a company of a specified character, 22 or that it is a "joint stock company," duly organized and existing under the laws of a specified State and a citizen thereof,23 is insufficient. The pleading should allege that it was created by or under the laws of such State,24 or at least that it was organized 25 under the laws thereof. An allegation that a party was a corporation under the laws of the State of Virginia, and a citizen of Virginia, and a resident of the Western District thereof, was held to be good.26 The residence or domicile of a corporation is sufficiently alleged by an averment that it is organized under and pursuant to the laws of a State and has its principal office and place of business in a certain county, when the county is within the judicial district.27 It has been held: that the fact that the residence of a corporation is at a certain place cannot be inferred because the name of that place is part of the corporate name.2

28

If one of the parties is an alien, the bill should aver that he is "a citizen and subject of a foreign State," specifying that State's name.29 An allegation that a party is "a citizen of London, England, 30 was held to be insufficient to show that he was

A., 318 Fed. 535; De Biasi v. Normandy Water Co., 228 Fed. 234; Fentress Coal & Coke Co. v. Elmore, C. C. A., 240 Fed. 328.

19 N. Y. & N. E. R. Co. v. Hyde, C. C. A., 56 Fed. 188, 191.

20 Farmers' Oil & Guano Co. v. Duckworth Co., C. C. A., 217 Fed. 362.

21 Chicago, R. I. & P. Ry. Co. v. Stephens, C. C. A., 218 Fed. 535.

22 Lownsdale v. Gray's Harbor Boom Co., 117 Fed. 983.

23 Rountree v. Adams Express Co., C. C. A., 165 Fed. 152. For what is a sufficient allegation of the citizenship of members of a partnership, see Derk P. Yonkerman Co. v.

C. H. Fuller's Ad. Agency, 135 Fed. 613.

24 Lonergan v. Illinois Cent. R. Co., 55 Fed. 550.

25 Sun Pr. & Pub. Ass'n v. Edwards, 194 U. S. 377, 48 L. ed. 1027; Ward v. Blake Mfg. Co., CC. A., 56 Fed. 437.

26 Mathieson Alkali Works VMathieson, C. C. A., 150 Fed. 241. 27 United States v. Stannard, 207 Fed. 198.

28 Harvey v. Richmond & M. RyCo., 64 Fed. 19.

29 Wilson v. City Bank, 3 Sumner, 422.

30 Stuart v. Easton, 156 U. S. 46, 39 L. ed. 341. But in Mahoning

« ForrigeFortsett »