
    PREFERRED ACC. INS. CO., OF NEW YORK, v. BARKER.
    (Circuit Court of Appeals, Fifth Circuit.
    April 12, 1898.)
    No. 686.
    Jurisdiction of Federal Courts — Averments of Citizenship — Amendment on Appeal.
    A petition which avers the residence of the parties only cannot be amended on appeal so as to show citizenship; but the judgment may be reversed, and the cause remanded, with instructions to dismiss the suit, unless, by proper amendment below, diverse citizenship is made to appear.
    
    In Error to the Circuit Court of the United States for the Eastern District of Louisiana.
    This was an action at law brought by Harriet Barker against the Preferred Accident Insurance Company, of New York, to recover on a policy of accident insurance. In the circuit court, verdict and judgment were given for plaintiff, and the defendant sued out this writ of error. The case is heard here on motion of counsel for the plaintiff for leave to amend the petition by inserting certain allegations in respect to the citizenship of the parties. The averments of the petition in this regard were as follows: “The petition of Harriet Barker, widow of J. W. Barker, who resides in the city of New Orleans, respectfully represents: That the Preferred Accident Insurance Company, of New York, a corporation organized under the laws of the state of New York, and domiciled in the city of New York, but here present in this district by an agent,--Franko Watson, — who is authorized to accept service of legal process, and to stand in judgment for said corporation, as required by the constitution and laws of the state of Louisiana, is legally and justly indebted,” etc.
    Heweá T. Gurley, for plaintiff in error.
    S. Wolff, for defendant in error.
    Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge.
    
      
       As to “Necessity for Averment of Citizenship,” see note to Shipp v. Williams, 10 C. C. A. 261, and supplementary note to Mason v. Dullagham, 27 C. C. A. 303.
    
   PER CURIAM.

The motion of counsel for defendant in error for leave to amend the petition filed in the court below by inserting that the plaintiff below was at the time that this suit was instituted, and is now, a citizen of the state of Louisiana, and the defendant was at that time, and is now, a citizen of the state of New York, is denied. The amendment proposed is one of substance, and presents an issuable fact, which cannot be traversed in this court. The motion presented is a confession of error; and as, upon an inspection of the record, the jurisdiction of the circuit court does not appear, it is ordered and adjudged that the judgment of the circuit court be, and the same is, reversed, and the cause is remanded, with instructions to dismiss the suit, unless, by a proper amendment, the jurisdiction of the circuit court shall be made to appear.  