Warren

The question of the jurisdiction of the court over this ease is presented by the demurrer to the second amended complaint. The question must he determined on the basis of whether or not the jurisdictional facts existed at the time the original complaint was filed. If the jurisdictional facts then existed, the court may in its discretion permit an amendment to cure a defect in alleging them. Rabe v. Danaher (C. C. A. 2) 56 F.(2d) 758 ; Swayne & Hoyt v. Barsch (C. C. A. 9) 226 F. 581 ; Mutual Life Ins. Co. v. Thompson (D. C.) 27 F.(2d) 753 ; Carr v. Fife, 156 U. S. 494 , 15 S. Ct. 427 , 39 L. Ed. 508 ; 1 Cyc. Fed. Procedure, p. 709, and eases therein cited. Where, however, the jurisdictional facts did not exist at the time the original complaint was filed, hut arose thereafter, an amendment to the complaint setting up the new facts does not give the court jurisdiction. Sanbo v. Union Pacific Coal Co. (C. C.) 146 F. 80 ; Anderson v. Watts, 138 U. S. 694 , 11 S. Ct. 449 , 34 L. Ed. 1078 ; 15 Corpus Juris, 773, § 68; 1 Cyc. Fed. Procedure, p. 710.

In this ease, at the time the complaint was filed, plaintiff as executrix of her deceased husband’s estate had a cause of action for less…