of the intervention of the Atlanta & Birmingham Air Line Railway, which intervenes and sets up by petition that under its contract it had a prior right to hold and use said machinery, and to finish an uncompleted work which the mortgagor had undertaken for it, and that the mortgagee took with notice of the intervener's rights, and that the court's taking possession by the receiver, thereby preventing the intervener from asserting its rights, will work a great hardship upon it, all of which matters are litigated, thereupon said intervener asks an order to have the property turned over to it in accordance with its alleged rights under the contract; and the court, being of opinion that it ought not in limine to decide upon that question, or upon the rights of the parties with reference thereto, and without passing upon the rights of the parties, or deciding anything as to the equities of any of the parties in this respect, declines at this time to grant the prayer of said petition; reserving for further decree whatever may be ascertained to be equitable and right in the premises. Thereupon the intervener asks the court, in open court, upon its petition (no testimony being, under the circumstances, introduced), to allow it to run or use the plant, outfit, and machinery upon such terms as to the court may seem equitable and just; and it appearing to the court that it is to the interest of all parties and for the conservation of the property that said plant, outfit, and machinery in the hands of the receiver shall be used, and not be idle, and that it might work great hardship, if the rights claimed by the intervener turn out to be well founded, to deny it such use of the said plant, etc., and cannot work harm to the mortgagor or to the mortgagee to permit the use of said property by the intervener upon the terms and conditions hereinafter stated, it is therefore ordered, adjudged, and decreed, against the objection of the complainant and defendant in said bill, that the receiver appointed herein permit the use of said plant, equipments, and outfit and tools and other property claimed under complainant's mortgage, now in his possession, upon the following terms and conditions: "(1) That the intervener and receiver shall each forthwith select some competent person, whose duty it shall be together to take an inventory of all the property, accompanying it with a statement of the condition of said property and its value, which shall be filed with the clerk of this court. If they cannot agree, the two persons so selected shall select a third person, each of whom shall report his opinion as to the condition and value of the property. In event of the failure of either of the parties to select an appraiser, or of the appraisers to agree among themselves upon a third person, either of them shall apply to the court, which will thereupon supply the appraiser or appraisers.

"(2) Upon the completion of said inventory and appraisement, the receiver is directed to permit the use of the plant, outfit, equipment, and tools, and to turn the same over to the Atlanta & Birmingham Air Line Railways, upon being notified by the clerk of this court that said railway company has executed bond as prescribed herein.

"(3) It is further ordered that said Atlanta & Birmingham Air Line Railway, before taking possession of any of the property, shall execute bond in the sum of one hundred and fifty thousand dollars, with approved surety, to be approved by, and be payable to, the clerk of the Circuit Court of the United States for the Southern Division of the Northern District of Alabama, or his successors in office, conditioned as follows:

"(a) To return said property, when ordered by the court, in as good condition as when received, ordinary wear and tear excepted, and to pay such compensation for the use thereof as may be adjudged by the court to be reasonable and proper, if it be finally decided that the railway company is not entitled to use said property without compensation, subject to the right of appeal from the amount of compensation so decreed, if any, and, also, subject to like right of appeal, to pay such damages as may be assessed by the court for any loss or damage to the property occasioned by the negligence of said railway company, its officers or employés, in the use of said machinery, or from the failure to properly care for the same, or from accidents incident to the business, and for the sum found to be due for compensation, if any be found to be due, and also the amount which may be assessed as damages for any default in the conditions herein prescribed, without the intervention

of a jury, on summary motion, on such notice as may be prescribed by the court, without prejudice, however, to any other remedy it may have.

"(b) It is further ordered that the receiver shall have the right, by himself, or an inspector of his appointment, to go upon the work where the said equipment, outfit, tools, and plant are being used or cared for, to report upon the manner in which it is being used and cared for, and report from time to time to the court, if there be any lack of care or attention in the use or care of such machinery, in which event the court reserves the right to make such further orders as may be proper, in the discretion of the court. "(c) For the present, and until the further order of the court, the receiver shall appoint one inspector, who shall be paid not exceeding one hundred dollars per month, in watching and reporting upon the use of the property, which inspector shall be paid by the railway company at the end of each month, as other employés are paid. The duty of such inspector is solely confined to watching and caring for the property, and reporting thereon.

"(d) It is further ordered, adjudged, and decreed that this order, which simply relates to the conservation of the property in the hands of the court, shall in no wise affect, or be deemed in any manner a decision in any way upon, the conflicting claims, rights, or equities of the parties herein, all of which matters are reserved for future and further decree in this cause. Thos. G. Jones, U. S. Judge."

"This April 21, 1904.

From this decree the Columbia Avenue Trust Company prosecutes this appeal, and the appellees move to dismiss because the same is not a final decree, nor a decree within the appellate jurisdiction of this court. An inspection of the decree shows that it is in no respect a final decree. The court does not pass upon or decide upon the rights of any of the parties; does not discharge the property from the custody and control of the court, through its receiver; nor, in fact, do anything else than provide for the preservation and safe custody of the property pending the litigation, reserving all issues for future disposition. It is needless to say that the decree contains no interlocutory order, such as the granting of an injunction or the appointment of a receiver, from which, under proper circumstances, an appeal lies to this court.

The motion is granted, and the appeal is dismissed.

KNIGHT et al. v. LUTCHER & MOORE LUMBER CO. et al.

(Circuit Court of Appeals, Fifth Circuit. April 4, 1905.)

No. 1,401.

1. FEDERAL COURTS-JURISDICTION-DIVERSE CITIZENSHIP-ALLEGATION AS TO CORPORATION.

The allegation, as to a corporation, for the purpose of showing a federal Circuit Court's jurisdiction on the ground of diverse citizenship, that it is a citizen of a certain state, is not enough. It should be shown it was created by the laws of that state.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 880. Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.] 2. REMOVAL OF CAUSES-SEPARABLE CONTROVERSY.

In a suit for an undivided half interest in a single tract of land alleged to be wrongfully withheld by the two defendants, there is no separa

ble controversy, so as to allow removal to the federal Circuit Court, though the citizenship of plaintiffs and of only one of defendants is di

verse.

[Ed. Note.-Separable controversy ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.]

In Error to the Circuit Court of the United States for the Western District of Louisiana.

A. J. Murff (M. J. Cunningham and Murff & Webb, on the brief), for plaintiffs in error.

J. D. Wilkinson and Mason Williams (T. Alexander, on the brief), for defendants in error.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

SHELBY, Circuit Judge. This action was brought by the plaintiffs in error against the defendants in error in the Twelfth Judicial District court of Louisiana to recover an undivided one-half interest in certain real estate described in the petition. On the application of the defendants in error the cause was removed from the state court to the United States Circuit Court. It was there tried, and judgment entered for the defendants in error, and thereupon the case was brought to this court by the plaintiffs on writ of error. The case was removed to the Circuit Court on the ground that it was a controversy between citizens of different states. No claim to remove the case was asserted on any other ground.

It has been often decided, and has recently been repeated by the Supreme Court in Thomas v. Board of Trustees, 195 U. S. 207, 25 Sup. Ct. 24, that, "when jurisdiction depends upon diverse citizenship, the absence of sufficient averments, or of facts in the record, showing such required diversity of citizenship, is fatal, and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived." It is well settled that when the ground of removal is diversity of citizenship. the party to the suit on one side, whether consisting of one or more persons, must have a citizenship different from that of the party on the other side, whether consisting of one or more persons. 25 Stat. 434, § 2 [U. S. Comp. St. 1901, p. 509]; Wilson v. Oswego Township, 151 U. S. 62, 14 Sup. Ct. 259, 38 L. Ed. 70. The petition for removal shows that the plaintiffs are all citizens of the state of Louisiana, and it shows that Henry J. Lutcher, one of the defendants, is a citizen of the state of Texas, and it is alleged as to the other defendant: "The Lutcher & Moore Lumber Company was at the time of the commencement of this suit, and still is, a citizen of the state of Texas, and of no other state, residing in the city of Orange, in said state." We have carefully examined the record to see if other portions of it will correct this defective averment. We find in the petition filed by the plaintiffs in the state court a reference to the "Lutcher & Moore Lumber Company, a corporation, domiciled at Orange, Texas." The question, therefore, presented

by the record, is whether or not these averments are sufficient to confer jurisdiction upon the Circuit Court.

The jurisdiction of a Circuit Court of the United States is limited in the sense that it has no jurisdiction except that conferred by the Constitution and laws of the United States. There is no claim that the court has jurisdiction of this case except upon the ground that it is a "controversy between citizens of different states." A suit by or against a corporation in a court of the United States is regarded as brought by or against its stockholders, all of whom are, for the purposes of jurisdiction, conclusively presumed to be citizens of the state which created the corporation. It follows that, to confer jurisdiction in this case, it should appear affirmatively from the record that the Lutcher & Moore Lumber Company is a corporation created by a state whereof the adverse parties are not citizens. Muller v. Dows, 94 U. S. 444, 24 L. Ed. 207. Where a corporation is sued, it is not enough, in order to give jurisdiction, to say that the corporation is a citizen of a state, naming it. It must appear by proper averment that the corporation was created by the laws of the state, for in no other way can it be, for the purposes of jurisdiction, a citizen of a state. Lafayette Insurance Co. v. French, 18 How. 404, 15 L. Ed. 451; Frisbie v. Chesapeake & Ohio Ry. Co. (C. C.) 57 Fed. 1; New York, etc., R. Co. v. Hyde, 56 Fed. 188, 5 C. C. A. 461; Lonergan v. Illinois Central R. Co. (C. C.) 55 Fed. 550; Pennsylvania v. Quicksilver Co., 10 Wall. 553, 19 L. Ed. 998. If it had been shown by the petition for removal, or in any other part of the record, that the Lutcher & Moore Lumber Company was, when the suit was begun, and still is, a corporation duly organized (or created, incorporated or chartered) under the laws of Texas, such averment would have been sufficient to have conferred jurisdiction upon the United States Circuit Court. To meet the requirement of the decisions of the Supreme Court to confer jurisdiction, it must appear that the corporation was created under the laws of the state. Moon on the Removal of Causes, § 163, and authorities there cited; Carter on Jurisdiction Fed. Courts, 195. There is no suggestion in the record that there is in the suit a separable controversy, but in the brief filed that claim is made. The suit is for an undivided one-half interest in a single tract of land alleged to be wrongfully held by the two defendants. In such case there is no separable controversy. Moon on the Removal of Causes, 406, § 143, and cases cited in note 3. The record failing to affirmatively show the jurisdiction of the Circuit Court, that court should have remanded the case to the state court. The costs should be awarded against the party wrongfully removing the cause. M. C. & L. M. R. Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462.

The judgment of the Circuit Court is reversed, with costs against the defendants in error, and the case is remanded to the Circuit Court, with instructions to proceed according to law and in conformity to the opinion of this court.

ROGERS et al. v. DE SOTO PLACER MIN. CO.

(Circuit Court of Appeals, Ninth Circuit. February 6, 1905.)

No. 1,103.

BANKRUPT'S PETITION-VERIFICATION BY ATTORNEY.

An involuntary bankruptcy petition, containing a verification by petitioners' attorney in which he stated on oath that he was such attorney, that the statements contained in the petition were true, and that the reason why the verification was made by him, instead of the petitioners in person, was because the petitioners were all without the district, and for that reason unable to verify the petition, and that he was duly authorized to institute and conduct the proceedings, was sufficientiy verified under Bankr. Act July 1, 1898, c. 541, § 18, subd. "c," 30 Stat. 551 [U. S. Comp. St. 1901, p. 3429], providing that all pleadings setting up matters of fact shall be verified under oath.

[Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 123.] Appeal from the District Court of the United States for the Second Division of the District of Alaska.

The record shows that the appellants filed, on the 7th day of April, 1904, in the court below, their amended petition to have the appellee declared bankrupt, the petition being verified by one of the attorneys for the petitioners, whose affidavit was as follows:

"United States of America, District of Alaska-ss.:

"James W. Bell, being first duly sworn, deposes and says: That he is an attorney at law, duly admitted to practice, and is actively engaged in the practice of law before the United States District Court for the District of Alaska, second Division; that he has full authority to appear for the abovenamed petitioners in the above-entitled matter; that he has read the foregoing amended petitions, knows the contents thereof, and believes the same to be true; that affiant's knowledge of the matters and things set forth in said petition are derived from statements under oath received from petitioners from Seattle, Washington, during the present winter, and from certified copies of the records of respondent's properties in the District of Alaska. Affiant makes this verification for the reason that said petitioners are not now within the jurisdiction of this court, and are unable to make this verification.

"Jas. W. Bell.

"Subscribed and sworn to before me this 4th day of April, 1904. "[Notarial Seal.] Viola C. Orton, "Notary Public in and for the District of Alaska." This verification having been held insufficient by the court below, the petitioners, on the 9th of April, 1904, filed a second amended petition, verified as follows:

"United States of America, District of Alaska-ss.:

"James W. Bell, being first duly sworn, on his oath deposes and says: That he is the attorney for the petitioners named in the foregoing amended petition, and that the statements therein contained are true; that the reason why this verification is made by affiant, instead of by said petitioners in person, is because said petitioners are all without the District of Alaska, and for that reason unable to verify said petition; that affiant is an attorney of this court, and has been duly authorized to institute and conduct the proceedings herein. "Jas. W. Bell.

"Subscribed and sworn to before me this 9th day of April, 1904. "John H. Dunn, "Deputy Clerk, U. S. District Court, District of Alaska, 2d Div., Residing at Nome."

The respondent thereupon moved the court "to dismiss these proceedings, and that the petition of petitioners be stricken, upon the ground that the