This was an action brought in the circuit court of the United States for the western district of Texas by J. W. Eckman, a citizen and resident of that district, as guardian of Alfonso Huesselmann, a minor, against the Mexican Central Railway Company, a corporation of Massachusetts, to recover damages for injuries sustained by him in the Republic of Mexico through the negligence of the company, in whose employment he then was. The complaint set out certain sections of the Constitution, of the Penal and Civil Codes, and acts of Congress and regulations thereunder, of Mexico, and averred that, 'by virtue of the general principles of right and justice, and by virtue of the laws of Mexico hereinbefore set forth,' [187 U.S. 429, 430] plaintiff had a right of action in Mexico, and that the same existed in the United States; and also that the acts of negligence complained of were wrongful and actionable in the United States and in the state of Texas, as well as in the Republic of Mexico. Defendant filed a plea in abatement to the effect that Huesselmann was not then, or at the time of the infliction of the injuries, a citizen or resident of the state of Texas, but that he and his parents were citizens and residents of the state of Illinois; and that defendant was a resident and citizen of Massachusetts, and had not waived its right to be sued there, which right it pleaded, and asked that the action be dismissed. The plea was overruled, and defendant filed an answer containing seven exceptions or pleas to the jurisdiction, an exception to the complaint for insufficiency, and a general denial. All of the pleas were overruled, and the case was tried before a jury, a verdict rendered in plaintiff's favor, and judgment entered thereon. Thereupon a writ of error was allowed from this court on a certificate that the following questions of jurisdiction arose:
Messrs. A. B. Browne, Alex. Brittor, and Eben Richards for plaintiff in error.
Mr. Millard Patterson for defendant in error. [187 U.S. 429, 432]
Mr. Chief Justice Fuller delivered the opinion of the court:
This case is brought directly from the circuit court to this court under the 1st subdivision of the 5th section of the judiciary act of March 3, 1891 [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549], providing that that may be done 'in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.' It must be regarded as settled that the jurisdiction here referred to is the jurisdiction of the circuit or district courts of the United States as such (Smith v. McKay, 161 U.S. 355 , 40 L. ed. 731, 16 Sup. Ct. Rep. 490; Blythe v. Hinckley, 173 U.S. 501 , 43 L. ed. 483, 19 Sup. Ct. Rep. 497); that the whole case is not open to us, but only the question of jurisdiction (Horner v. United States, 143 U.S. 570, 576 , 36 S. L. ed. 266, 12 Sup. Ct. Rep. 522; United States v. Jahn, 155 U.S. 112 , 39 L. ed. 89, 15 Sup. Ct. Rep. 39); and that review by certificate is limited to the certificates by the circuit or district courts, made after final judgment, of questions made as to their own jurisdiction, and to the certificates by the circuit court of appeals of questions of law in relation to which the advice of this court is sought as therein provided. United States v. Rider, 163 U.S. 132 , 41 L. ed. 101, 16 Sup. Ct. Rep. 983.
Defendant's counsel condenses the propositions relied on into these: ( 1) That 'the citizenship of the ward, the actual plaintiff, not that of the guardian, the nominal plaintiff, controls;' (2) that 'the laws of Mexico as pleaded and proved, and which are relied on to support this case, are so vague and indefinite, and so dissimilar to the laws of Texas, as to be incapable of enforcement in our courts, and are inconsistent with the statutes and public policy of Texas;' and (3) that these laws 'are penal in their character, and such as should be given no extra-territorial effect.'
But, apart from the question of jurisdiction in respect of ctiizenship, it is apparent that the jurisdiction of the circuit court as a court of the United States was not put in issue, for the other contentions were matters on the merits, and this judgment to the contrary is not void, but is only open to be attacked for error, while, in any aspect, the objections applied to all courts of this country, and not particularly to the Federal courts. [187 U.S. 429, 433] And if the jurisdiction of the circuit court was invoked solely on the ground of diverse citizenship, the case should have been taken to the circuit court of appeals for the fifth circuit, to which court previous similar cases have been carried, and by which the questions suggested here have been dealt with. Evey v. Mexican C. R. Co. 38 L. R. A. 387, 26 C. C. A. 407, 52 U. S. App. 118, 81 Fed. 294; Mexican C. R. Co. v. Marshall, 34 C. C. A. 133, 91 Fed. 933.
These matters, however, are not properly before us in this case, and we intimate no opinion upon them.
The question for us to determine is whether the jurisdiction of the circuit court can be sustained through the citizenship of the guardian.
It is admitted that Eckman was duly appointed guardian of both the person and estate of Huesselmann by the proper court of Texas thereto empowered, and that he was a citizen and resident of the western district of Texas.
Under the act of March 3, 1887, 24 Stat. at L. 552, chap. 373, as corrected by that of August 13, 1888, 25 Stat. at L. 433, chap. 866,1 actions may be brought in any district in which either the plaintiff or the defendant resides. We have held that a corporation incorporated in one state only cannot be compelled to answer in a circuit court of the United States held in another state, to a civil suit, at law or in equity, brought by a citizen of a different state. Shaw v. Quincy Min. Co. 145 U.S. 444 , sub nom. Ex parte Shaw, 36 L. ed. 768, 12 Sup. Ct. Rep. 935. But that is not this case, as here the action was brought by a citizen of Texas in the district of his residence.
The question is whether under the laws of Texas a guardian can sue in his own name to recover damages for injuries sustained by the ward, and it is unaffected by the permanent domicil of the ward. Hoyt v. Sprague, 103 U.S. 613 , 26 L. ed. 585; New Orleans v. Gaines, 138 U.S. 595 , 606, sub nom. New Orleans v. Whitney, 34 L. ed. 1102, 1106, 11 Sup. Ct. Rep. 428, 431; Delaware County v. Diebold Safe & Lock Co. 133 U.S. 473, 488 , 33 S. L. ed. 674, 680, 10 Sup. Ct. Rep. 399.
It is true that where a state or one of its officials is a mere figurehead, a nominal party, to a suit on a sheriff's or administrator's bond, or an action is instituted in the name of a United States marshal on an attachment bond, the real party in interest is taken into account on the question of citizenship, not- [187 U.S. 429, 434] withstanding the general rule that the jurisdiction of the Federal courts depends, not on the relative situation of the parties concerned in interest, but on the relative situation of the parties named in the record. But those are instances of merely formal parties, whose names are used from necessity, and, as said in New Orleans v. Gaines, by Mr. Justice Bradley, 'we have repeatedly held that representatives may stand upon their own citizenship in the Federal courts irrespectively of the citizenship of the persons whom they represent,-such as executors, administrators, guardians, trustees, receivers, etc. The evil which the law was intended to obviate was the voluntary creation of Federal jurisdiction by simulated assignments. But assignments by operation of law, creating legal representatives, are not within the mischief or reason of the law.'
If in the state of the forum the general guardian has the right to bring suit in his own name as such guardian, and does so, he is to be treated as the party plaintiff so far as Federal jurisdiction is concerned, even though suit might have been instituted in the name of the ward by guardian ad litem or next friend. He is liable for costs in the event of failure to recover and for attorneys' fees to those he employs to bring the suit, and in the event of success, the amount recovered must be held for disposal according to law, and if he does not pay the same over to the parties entitled, he would be liable therefor on his official bond.
The Revised Statutes of Texas provide:
In Roberts v. Sacra, 38 Tex. 580, it was ruled that the guardian for minor heirs might sue in his own name on a promissory note payable to the ancestor of his wards on showing that they were the only heirs of the payee, and that there was no administration on the estate.
In Houston %& t. c. r. c/o. v. Bradley, 45 Tex. 171, 176, it was held that under a law authorizing suit for death by wrongful act, which provided that actions thereunder should be 'for the sole and exclusive benefit of the surviving husband, wife, child, or children, and parents of the person whose death shall have been so caused, and may be brought by such entitled parties, or any of them,' the suit might properly be brought in his own name by the guardian of the estate of minor children of the person whose death was caused by such act; and the court said: 'It is not regarded as material whether the suit is brought in the name of the guardian for his ward or in the name of the ward by his guardian. By the laws of Texas, the guardian of the person is entitled to the charge and control of the person of the ward, and the guardian of the estate is entitled to the possession and management of the property belonging to the ward, and to collect all claims and debts due him, to enforce all obligations in his favor, and to bring and defend suits by or against him.'
And see March v. Walker, 48 Tex. 372, where Walker sued as guardian of one of three children, and as next friend of the two others, and attention was called in respect of the two to the then statute, subsequently repealed, providing for the appointment of a special guardian to prosecute suits; and Gulf, C. & S. F. R. Co. v. Styron, 66 Tex. 421, 1 S. W. 161, in which the action had been brought 'by W. W. Styron, next friend of Millie Styron, a minor,' and it was decided that it was not necessary 'that the pleadings must [187 U.S. 429, 436] show, in so many words, that the action is brought by the minor by next friend,' although cases so ruling could be found.
We are unable to hold that the circuit court erred in assuming that this guardian had the legal right to bring the action in his own name, and it is on his citizenship, and not on the citizenship of the ward, that the jurisdiction of the circuit court depended.
[ Footnote 1 ] U. S. Comp. St. 1901, p. 508.