Henry Billings Brown

“ Not only is the remittitur in this case open to this objection, but it appears upon its face not to have been filed in good faith, but for the sole purpose of introducing the averment of citizenship; in other words, this averment is the objectand the remittitur the incident. Remittiturs are used where the judgment has been accidentally entered for a larger amount than was due, or occasionally to forestall an appeal, (Express Co. v. Malin, 132 U.S. 531, 10 Sup. Ct. Rep. 166;) but never to give jurisdiction where it is not otherwise shown. ”

“ It has been repeatedly held that it was not necessary for the averment to appear in the pleadings, but that the statute was complied with if it appeared in any part of the record. Thus in Railroad Co. v. Ramsey, 22 Wall. 322, which was a case removed from a state court, the averment of citizenship did not appear in the pleadings, but the parties, by stipulation and agreement placed on file, and made part of the record, admitted that the cause was brought into the circuit court by transfer from the state court in accordance with the statutes in such case provided. ”

“ Cease, 97 U.S. 646, it was claimed by counsel to be apparent, or to be fairly inferred from certain documents or papers copied into the transcript, that the plaintiff was, at the time of the commencement of the action, a citizen of Illinois. ”