Jack S. Russell v. Basila Mfg. Co., Inc. , 246 F.2d 432 ( 1957 )

PER CURIAM.

As filed, four plaintiffs, resident citizens of Alabama, sued a Delaware corporation and three officers and directors, each citizens of Alabama, on a common cause of action. The District Court was therefore without jurisdiction. Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435; Tucker v. New Orleans Laundries, D.C.La., 90 F.Supp. 290, 292, affirmed with approval 5 Cir., 188 F.2d 263, 265, certiorari denied 342 U.S. 828, 72 S.Ct. 52, 96 L.Ed. 627; Dollar Steamship Lines v. Merz, 9 Cir., 68 F.2d 594, 595. The defect was basic and actual, not formal, so amendment of pleadings, 28 U.S.C.A. § 1653, Kaufman v. Western Union Telegraph Co., 5 Cir., 224 F.2d 723, 725, certiorari denied 350 U.S. 947, 76 S.Ct. 321, 100 L.Ed. 825, is unavailing. The Court, however, twice on motion to dismiss for failure of the Complaint to state a claim for which relief could be granted as to the resident officers and directors, and once on summary judgment in favor of the corporate defendant, undertook to and did decide, i. e., adjudicate, the merits of each. Clearly this was the act of a Court having no jurisdiction. And since the presence of Alabama defendants was eliminated only by virtue of the adjudication by the Court presuming to have jurisdiction, i. e., power to act, not then existing, that dismissal was ineffective to remove the obstacle. Horn v. Lockhart, 17 Wall. 570, 84 U.S. 570, 21 L.Ed. 657, does not hold to the contrary. We are thus without jurisdiction and the cause is reversed and remanded to the District Court for dismissal for want of jurisdiction. For possible action in the District Court on remand, see Wells v. Universal Pictures Co., 2 Cir., 166 F.2d 690, 692; Levering & Garrigues Co. v. Morris, 2 Cir., 61 F.2d 115, 117, 121, affirmed on other grounds 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062; Drumright v. Texas Sugarland Co., 5 Cir., 16 F.2d 657, certiorari denied 274 U.S. 749, 47 S.Ct. 764, 71 L.Ed. 1331; Dollar Steamship Lines v. Merz, supra. Since, on the briefs on the merits, the principal inquiry testing summary judgment has been necessity for or sufficiency of the controversion of movant’s papers, Bruce Construction Corp. v. United States for Use of Westinghouse Electric Supply Company, 5 Cir., 242 F.2d 873; Wilkinson v. Powell, 5 Cir., 149 F.2d 335; Surkin v. Charteris, 5 Cir., 197 F.2d 77, 79, and this situation may be changed altogether by further or different pleadings, new motions, replies, and supporting and controverting affidavits, we can not, as requested, treat it as though the case had been sent back, the jurisdiction somehow perfected, and a new appeal, without a re-trial, perfected from a judgment sustaining summary judgment.

Reversed and remanded.