Statement of the Case.

and foreign citizens and subjects, and that petitioner and the owners of said steamship all were at the time of the commencement of this suit and still are citizens and subjects of the Kingdom of Great Britain.

"That petitioner offers herewith a bond, with good and solvent surety, for his entering in the Circuit Court of the United States in and for the fifth circuit and eastern district of Louisiana a copy of the record of this suit and for paying all costs which may be awarded by said Circuit Court if said court should hold that this suit was wrongfully or improperly removed thereto; and he prays this honorable court to proceed no further herein, except to make the order of removal required by law and to accept the said surety and bond, and to cause the record herein to be removed into said Circuit Court of the United States in and for the fifth circuit and eastern district of Louisiana; and petitioner will ever pray.

"LEARY & KRUTTSCHNITT, Attorneys for Petitioner."

Thereupon on the 27th of June, orders were duly made for the removal of the cause, in all its branches, to the Circuit Court of the United States. Subsequently such proceedings were had there, that after default taken against Jones, the following judgment was entered in the cause at April term, 1886:

"The parties in this cause having filed a stipulation waiving the intervention of a jury, and submitted the cause to the court upon the issues of fact as well as of law, and the court, having considered the evidence and being advised in the premises, finds the issues of fact raised by the pleadings in favor of the plaintiffs. It is therefore ordered, adjudged and decreed that there be judgment in favor of the plaintiffs, the commercial firm of Allen, West & Bush, composed of James H. Allen, Thomas H. West, John C. Bush, and against the defendants, the succession of Alfred F. Jones, in the sum of ten thousand eight hundred and sixty-five dollars ($10,865.25), with legal interest thereon from the 7th day of June, 1884, until paid, with recognition of lien and privilege in favor of said plaintiffs

Counsel for Parties.

as vendors upon the two hundred and sixty-eight bales of cotton herein sequestered for the payment of the same.

"It is further ordered, adjudged, and decreed that the petition of intervention and third opposition of the commercial firm of Brown Brothers & Co., composed of James M. Brown, Charles D. Dickey, Howard Potter, John Crosby Brown, John Edgar Johnson, Stewart Henry Brown, Francis A. Hamilton, Alexander H. Brown, Mark W. Collett, and Frederick Chalmers, be to the extent of the judgment, with lien and privilege, hereinabove rendered in favor of the said plaintiffs as vendors of said cotton sequestered herein, and the same is dismissed, but that to any residue of said cotton or its proceeds, after satisfaction of the aforesaid judgment thereupon, the said intervenors and third opponents be declared to be entitled and accordingly have judgment therefor.

"It is further ordered, adjudged and decreed that said plaintiffs have judgment against the defendants, the succession of· Alfred F. Jones, and William Jackson, master of the steamship Counsellor, and as bailee of the owner of said steamship, in solido, for all costs incurred in this suit prior to the filing of said petition of intervention and third opposition, and that all costs incurred subsequent to the filing of said petition be paid out of the cotton sequestered or its proceeds."

Thereupon a writ of error was sued out by Jackson against Allen, West & Bush and Brown Brothers & Co., and another writ of error by Brown Brothers & Co. against Allen, West & Bush. When the cause was reached on the docket in this court it was argued on the merits. The briefs on neither side treat of the question of jurisdiction on which the case turned in the opinion of the court.

Mr. Thomas L. Bayne for Brown Brothers & Co. Mr. George Denégre was with him on the brief.

Mr. Ernest B. Kruttschnitt and Mr. Edgar H. Farrar, for Jackson, submitted on their brief.

Mr. Alfred Goldthwaite and Mr. John M. Allen for Allen, West & Bush.

VOL. CXXXII-3

Syllabus.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

The original action and that of intervention and third opposition therein were brought in the Civil District Court for the parish of Orleans, Louisiana, and petitions filed for their removal into the Circuit Court of the United States for the Eastern District of Louisiana, upon the ground of the diverse citizenship of the parties. The cause was thereupon docketed and tried in the Circuit Court by the judge thereof, on stipulation according to the statute, and upon his findings judgment was rendered and writs of error were prosecuted to this court.

It appears from the record that the citizenship of the parties at the commencement of the actions, as well as at the time the petitions for removal were filed, was not sufficiently shown, and that therefore the jurisdiction of the state court was never divested. Stevens v. Nichols, 130 U. S. 230. This being so, the defect cannot be cured by amendment. Crehore v. Ohio and Mississippi Railroad Co., 131 U. S. 240.

We are compelled to reverse the judgment, at the costs, however, of the respective plaintiffs in error, and remit the cause to the Circuit Court, with directions to remand to the state court. Ordered accordingly.

CAMPBELL v. WADE.

ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS.

No. 20. Argued October 18, 1889. - Decided October 28, 1889.

The statutes of the State of Texas of July 14, 1879, and March 11, 1881. providing for the sale of a portion of the vacant and unappropriated public lands of the State, did not operate to confer upon a person making application under them for a survey of part of said lands and paying the fees for filing and recording the same, a vested interest in such lands which could not be impaired by the subsequent withdrawal of them from sale under the provisions of the statute of January 22, 1883.

Statement of the Case.

THE case was thus stated by the court in its opinion:

This case comes from the Supreme Court of Texas, and arises upon the following facts: By an act of that State, passed on the 14th of July, 1879, the sale of a portion of its vacant and unappropriated public lands within certain counties and what was known as the Pacific Railway reservation was authorized. (Laws of 1879, Special Session, c. 52.) It provided that any person, firm or corporation desirous of purchasing any of those lands might do so by having the same surveyed by the authorized public surveyor of the county or district in which the land was situated. And it was made the duty of the surveyor, upon the application of a responsible party designating the lands desired, to make the survey within three months from its date, and within sixty days thereafter to certify to, record and map the field-notes of the survey, and file them in the General Land Office. The act provided that within sixty days after the filing of these papers in the General Land Office, it should be the right of the person, firm or corporation at whose instance the lands had been surveyed to pay into the treasury of the State the purchase-money therefor, at the rate of fifty cents per acre, and that upon presentation to the General Land Office of the receipt of the state treasurer for this money, the commissioner should issue to such person, firm or corporation a patent for the lands. And the act declared that after the survey of any of the public domain as thus authorized, it should not be lawful for any person to file or locate upon the land thus surveyed.

It was under these provisions, amended by an act passed March 11, 1881, (Laws of 1881, c. 33,) which, however, did not materially affect them in the particulars under consideration, that the petitioner below, the appellant here, who was a responsible person, sought to purchase lands situated in El Paso County of the State, to the extent of one hundred and fifteen thousand acres, in tracts of six hundred and forty acres each. For that purpose, on the 16th of December, 1882, he applied to the surveyor of the county for the lands, which were fully described, and were of the character authorized to be sold

Statement of the Case.

under the acts in question within the Pacific Railway reservation. The surveyor received, filed and recorded the application. The petitioner paid the fees for such filing and recording, and demanded that the land should be surveyed for him as required by law. No such survey was, however, made by the surveyor, and on the 22d of January, 1883, before the time expired within which he was allowed to make it, the legislature of the State withdrew from sale all the public lands mentioned in the acts in question. (Laws of 1883, c. 3.) After this withdrawal, the petitioner again applied to the surveyor for a survey of the lands, and tendered him the legal fees for making the survey, but the surveyor refused to make it, on the ground that the act of July 14, 1879, authorizing the sale, and the amendatory act of March 11, 1881, had been suspended by the act passed January 22, 1883, and consequently that he had no authority to make the survey. The petitioner thereupon presented to the District Court of the county of El Paso a petition for a mandamus to compel the surveyor or his successor in office to make the survey and return the fieldnotes of it to the General Land Office of Texas. The surveyor appeared in the suit, and filed both an answer and a demurrer to the petition, a procedure permitted, as we understand, under the laws of that State. The demurrer was on the ground that the petition disclosed no cause of action. The answer was a general denial of the allegations of the petition. Upon the trial which followed, the court sitting without the intervention of a jury, judgment was given in favor of the defendant. An appeal being taken, the case was heard by the Commissioners of Appeals. Upon their report the judgment was affirmed by the Supreme Court. To review that judgment the case is brought here on writ of error.

When the petition was filed in the District Court of the State, and its judgment rendered, Ward B. Marchand was the surveyor of El Paso County. Pending the appeal from the judgment he died, and his successor in office, Samuel H. Wade, was, by consent of parties, substituted in his place as defendant.