Charles John Barkhorn, Jr. v. Adlib Associates, Inc., a Nevada Corporation

This is a real estate controversy. Jurisdiction was asserted on the basis of diversity of citizenship.

The original complaint alleges: “Plaintiff [Barkhorn] is a citizen of the State of Hawaii, and defendant [Adlib Associates, Inc.] is a corporation organized and existing under the laws of the State of Nevada. The amount in controversy between the parties exceeds $10,-000. ” The answer of Adlib Associates, Inc., fails to respond to the allegation. Ordinarily, such an omission would stand as a conclusive admission.

The pre-trial order comes no closer to any mention of citizenship than to say that “Adlib Associates, Inc.” is “a Nevada Corporation.” The trial court’s decision says “[p]Iaintiff is a citizen of the State of Hawaii and defendant is a Nevada corporation.” The judgment makes no reference to anyone’s citizenship.

From the foregoing, it may be seen that there is actually no allegation of diverse citizenship, no stipulation of facts creating it, no finding that it exists, and no judgment of its existence.

But this is not the frequent case of inexact pleading. Here defendant-appellee Adlib Associates, Inc., raised the issue by motion, supplied an affidavit, and took a…