Nester

Appellant challenges a judgment rendered against it for breach of its duty to transmit and deliver $150 paid it by appellee Nester, to appellee Charles in the Republic of Honduras.

Appellees, at the time of the transactions in question, were partners engaged in operating, under lease, a mine in the Republic of Honduras. Nester, on August 2, 1937, at Los Angeles, shipped some goods to Charles, who was in the Republic of Honduras. The shipment arrived there on August 15, 1937. The applicable articles of the Honduras statutes, regarding confiscation of the goods are:

. “Article No. 4 — All goods shall be deposited in the national warehouses. * * *

“Article No. 7 — The following merchandise shall not go into the national warehouses, and shall be entitled to only six days of free deposit on sites within the jurisdiction of the Customshouse: % %

[The goods listed include those here involved.]

“Two centavos shall be charged daily for each kilogram of merchandise after the fixed period of time has elapsed, to cover the expense of safekeeping the articles under the custody of the state shall not exceed the period of six days on the following goods: * * *

[The goods listed do not…

(dissenting).

I dissent. In my opinion the District Court did not have jurisdiction and consequently our jurisdiction is limited to that of reversing the decision of the trial court. Jurisdiction is predicated upon diversity of citizenship. Plaintiffs, who are residents of California, join as defendants the Western Union Telegraph Company, a citizen of New York, T. J. Inie and certain other defendants sued by their fictitious names. The complaint contains no allegation concerning the citizenship or - residence of the defendant T. J. Inie. The complaint alleges the joint negligence of all the defendants in delaying the payment of a money order procured by the plaintiffs and judgment is prayed for against them all. The defendants Western Union Telegraph Company and Thelma Ivie (sued and served herein as T. J. Inie) answered the complaint and denied the allegation of negligence and for separate defense set up the terms of the contract between the parties for the transmission of money and alleged that under that contract the Western Union Telegraph Company was not liable for delay, non-payment or underpayment of the money order by reason of negligence or otherwise b'eyond the sum of…