
    KINNEY v. MITCHELL.
    (Circuit Court, E. D. Pennsylvania.
    June 15, 1905.)
    No. 43.
    Jurisdiction of Federal Court — Federal Question.
    A statement of claim which seeks to recover damages for acts of defendant done in his capacity as judge of a state court does not raise a federal question, and, where there is no diversity of citizenship, a circuit court of the United States is without jurisdiction, and It is its duty, on motion therefor, to dismiss the suit.
    [Ed. Note. — Jurisdiction in cases involving federal questions, see notes to Bailey v. Mosher, 11 O. C. A. 308; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C. A. 7.1
    
      On Motion to Dismiss for Want of Jurisdiction.
    Plaintiff brought suit in assumpsit to recover of the defendant certain sums, including consequential and exemplary damages, alleged to have been occasioned by defendant’s action, as chief justice of the Supreme Court of Pennsylvania, in remitting a case to the superior court. A motion to dismiss the suit was filed on the grounds (1) that the circuit court had no jurisdiction; and (2) the alleged cause of action was frivolous.
    Robert D. Kinney, for plaintiff.
    Samuel Dickson, for defendant.
   HOLLAND, District Judge.

Both the plaintiff and defendant in this case are residents and citizens of the same state and district. The cause of action is ex delicto or of a mixed character of contract and tort arising under the laws of Pennsylvania.. There is nothing in the subject-matter of the suit to give the federal court jurisdiction, and there is no diverse citizenship to bring it in this court, and, not having jurisdiction, it is the duty, as indicated by the Circuit Court of Appeals in this district in this particular case (136 Fed. 773), to proceed no further, but to dismiss the suit; and it is so ordered.  