Opinion
No. 9886.
February 19, 1945.
Appeal from the District Court of the United States for the Eastern District of Michigan; Ernest A. O'Brien, Judge.
Action by the People of the State of Michigan on the relation of Richard Vincent, Jr., and another against the National Surety Corporation, a New York corporation, and others. From an order dismissing the cause because of lack of diversity of citizenship, plaintiffs appeal.
Reversed and remanded.
Hugh K. Davidson and Morrow Kull, all of Detroit, Mich., for appellants.
Mason, Davidson Mansfield, Ken F. Corbitt, and Duffy Sullivan, all of Detroit, Mich., for appellees.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
It appearing that the cause was below dismissed because of lack of diversity of citizenship, and is submitted here on appeal on an agreed statement of facts, limited to excerpts from the pleadings, and it appearing from the record that the citizenship of Vincent, plaintiff, is in the complaint asserted to be in Indiana while the answer in denial asserts he is a citizen of Michigan, and it also appearing that there are no proofs, by affidavit or oral testimony, relating to the issue, and no finding thereon by the District Judge, and it also appearing that the oral statement of the appellant as to Vincent's citizenship upon which appellee relies in support of the order is not preserved of record, so that we are unable to determine whether the judge was right or wrong, it is hereby ordered that the dismissal be set aside and the case remanded to the District Court for a determination of the jurisdictional issue, either upon appropriate proofs, or upon concessions of counsel properly preserved, and with an appropriate finding thereon as to plaintiff's citizenship.
Reversed and remanded.