
    PEOPLE OF STATE OF ILLINOIS, for Use of CLAPP v. BOYER et al.
    Civil Action No. 186-D.
    District Court, E. D. Illinois.
    Sept. 25, 1941.
    V. W. Mclntire, of Danville, 111., for plaintiff.
    W. K. Kidwell, of Mattoon, 111., for defendants.
   LINDLEY, District Judge.

Plaintiff, a citizen of Illinois, sues defendant Charles William Boyer, Sheriff of Coles County, a citizen likewise of Illinois, and Columbia Casualty Company, a corporation, resident and citizen of New York, in two counts; Boyer being defendant in the first and the Casualty Company in the second. Jurisdiction is invoked upon the ground of diversity of citizenship, the amount involved being in excess of $3,000 exclusive of interest and costs.

Though no interested party questions the jurisdiction, it is the duty of the court sua sponte to observe any lack in that respect. Plaintiff and Boyer are both citizens of Illinois. Only the Casualty Company is nonresident of Illinois. When jurisdiction is based upon diversity of citizenship alone, the rule is that if plaintiffs or defendants are more than one, all plaintiffs must be competent to sue and all defendants must be liable to suit. If any plaintiff is a citizen of the same state as any defendant, jurisdiction is lacking. Mirabile Corp. v. Purvis et al., C.C., 143 F. 920; Smith v. Lyon, 133 U.S. 315, 10 S.Ct. 303, 33 L.Ed. 635; Hooe v. Jamieson, 166 U.S. 395, 17 S.Ct. 596, 41 L.Ed. 1049; Excelsior P. P. Co. v. Brown, 4 Cir., 74 F. 321, 20 C.C.A. 428; Columbia Digger Co. v. Rector et al., D.C., 215 F. 618; Hodgman et al. v. Atlantic Refining Co. et al., D.C., 274 F. 104; Anderson v. Bassman, C.C., 140 F. 10, 11; Hatch v. Chicago, etc., R. R. Co., Fed.Cas.No.6204, 6 Blatchf. 105, 113. It is apparent, therefore, that the court is without jurisdiction to entertain the present suit.

This want of jurisdiction can be cured only by discontinuance as to the defendant resident in Illinois. Otherwise, the action will have to be dismissed. Accordingly, plaintiff shall have 15 days within which to determine whether he will elect to discontinue as to the resident defendant.  