167 F. 241 | 8th Cir. | 1909
Lead Opinion
This action was brought by George W. Walker, doing business as the Walker Stave Company,, against the defendants (the plaintiffs in error), to recover a balance claimed to be due on a contract entered into between the parties on the 23d day of June, 1904, by the terms of which the plaintiff agreed to sell, and the defendants to purchase, 2,000,000 staves of different grades, delivery to be made in about equal quantities in each month down to November 1st of that year. It is not necessary in this place to state the issues more fully. The action was tried before the court without a jury, pursuant to stipulation. A general finding in favor of the plaintiff was made, and judgment entered accordingly. The judgment is chiefly attacked in this court upon the ground that there was no adequate proof of jurisdiction. The complaint properly states that the plaintiff is a citizen of the state of Illinois, and the defendant a corporation organized under the laws of Missouri. The answer is voluminous, raising many issues as to the merits of the controversy, and also contains a general denial which it is claimed puts in issue the citizenship of the plaintiff. On the trial Mr. Walker, while testifying as a witness was asked, “Where do you reside?” and answered, “I live in Vandalia, 111.” It is now assigned as a cause for impeaching the judgment that this testimony constitutes the only evidence
In passing upon this question, it is necessary to distinguish clearly between failure to plead jurisdictional facts in the complaint and a deficiency of proof on that subject in the evidence. The jurisdiction of federal courts, being limited, is aided by no presumption. Until the facts requisite to that jurisdiction are brought upon the record, there is no foundation for the exercise of any judicial power in the cause. It has therefore been uniformly held that these facts must appear with certainty and precision either in the complaint alone, or in the complaint when supplemented by other documents constituting a part of the record proper. Their absence cannot he waived, because they pertain to jurisdiction of the subject-matter and not of the person. By far the greater number of cases in which judgments have been set aside for jurisdictional reasons fall under this head. The facts essential to jurisdiction were not brought upon the record. The only other class is where want of jurisdiction has been disclosed by the evidence. In all such cases, with possibly one or two exceptions, the defect has appeared not from a failure to prove the allegations of the complaint, but by direct and positive evidence showing that the suit was not within the cognizance of federal coirrts. The present case falls under neither of these classes. Here the jurisdictional facts are alleged with certainty and precision, and the evidence does not show that jurisdiction is wanting.
The jurisdictional averments of the complaint in federal courts are not made as a basis for proof at the trial, but to found jurisdiction of the suit. They are not held in suspense until supported by proof, like allegations respecting the merits; but immediately, upon the filing of the complaint, they accomplish their purpose. Thereupon, by virtue of such allegations, plenary jurisdiction of the court over the cause arises. That jurisdiction is not suspended by a denial in tin answer or defeated by such a denial combined'with an inaccuracy or insufficiency of proof on the subject, but continues unimpaired until evddeuce is produced showing clearly that jurisdiction in fact does not exist. What, then, is the force and effect of a proper pleading of jurisdictional facts? (1) It makes a prima facie case in favor of jurisdiction. (2) Such jurisdiction continues until evidence is produced which convinces the mind to a “legal certainty” that the court in fact is without lawftd cognizance of the suit.
Before examining the authorities which we believe support these propositions, it will be advantageous to consider the conformity ad of June 1, 1872 (17 Stat. 196, c. 255), and the act of March 3, 1875. c. 137, § 1, 18 Stat. 470 (U. S. Comp. St. 1901, p. 508), section 5 of which defines the duty of federal courts as to the dismissal of suits for defects of jurisdiction arising upon the evidence. Before the passage of these statutes the jurisdiction of these courts could only be challenged by a separate plea which presented the question cleaily as a subject for-actual litigation. There is nothing in either of the acts which necessitates a change in this practice, and there are substantial reasons for the continuance either of that method, or of some
Speaking of the conformity act, the Supreme Court says, in Indianapolis & St. Louis Railroad Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898:
“The conformity is required to be as near as may be — not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose: It devolved upon the judges to be affected the duty of construing and deciding, and gave to them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such state statutes which, in their judgment, would unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals.”
This court also, speaking by Judge Sanborn in the case of Collin County National Bank v. Hughes, 155 Fed. 389, 83 C. C. A. 661, says:
*245 “Tlfe Supreme Court and this court have held that strict conformity to the practice and proceedings in the state court,s is impracticable, and that this section does not require the courts of the tlnited States to adopt any rule of pleading, practice, or procedure enacted by state statute or announced by the decision of state courts which would restrict their jurisdiction or unwisely incumber the administration of justice in their tribunals.”
Congress lias also clearly intimated that jurisdictional questions may be raised by plea. Section .1.011 of the Revised Statutes was amended by the act of February 18, 1875, c. 80, 18 Stat. 318 (U. S. Comp. St. 1901, p.715), more than three years after the passage of the conformity act, so as to read:
•‘There shall be no reversal in the Supreme Court or in a Circuit Court upon a writ of error for any error in ruling any plea in abatement other than a plea to the jurisdiction.”
Here is a manifest indication in a federal statute that jurisdictional questions may properly be raised by plea in abatement, and, of course, when there is á federal statute on a subject of practice, that is paramount to state statutes notwithstanding the conformity act. In our judgment, therefore, the rule of the codes that all pleas and defenses shall be embodied in the answer is not obligatory upon the federal courts when dealing with the subject of jurisdiction.
But if the code practice were controlling, it affords no justification for presenting objections to the jurisdiction of the court in the covert and indirect form of a general denial. As Chief Justice Ryan early pointed out, the rule of the codes that all defenses shall be contained in the answer has in, no way changed the nature of the defenses. Dutcher v. Dutcher, 39 Wis. 651. Pleas to the jurisdiction were always affirmative, and the burden of their proof rested upon the defendant. The fact that under the codes they may be combined in the answer with defenses on the merits has not changed their character. They are still affirmative in their nature, and should be supported with affirmative proof by the party interposing them.
Again, though under the codes pleas in abatement must be united in the answer with pleas in bar, they cannot be so combined at the trial. On the contrary, their nature is so divergent that, though combined in the answer, they must be tried separately. This is not only the, rule in the federal courts (Kirven v. Virginia-Carolina Chemical Co., 145 Fed. 288, 291, 76 C. C. A. 172; Ashley v. Board, 8 C. C. A. 455, 468, 60 Fed. 55, 68; Terry v. Davy, 46 C. C. A. 141, 143, 107 Fed. 50, 52; Toledo Traction Co. v. Cameron, 137 Fed. 48, 54, 69 C. C. A. 28; Wetmore v. Rymer, 169 U. S. 115, 120, 18 Sup. Ct. 293, 42 L. Ed. 682), but has likewise been found necessary in state courts controlled by the code practice (Board of Supervisors v. Van Stralen, 45 Wis. 675; Id., 46 Wis. 374, 1 N. W. 106; Wells v. Patton, 50 Kan. 732, 33 Pac. 15; Christian v. Williams, 35 Mo. App. 297). Inasmuch as pleas to the jurisdiction are by their nature so distinct from defenses involving the merits as to require a separate trial, there is no foundation in reason for the rule which requires both to be combined in the answer.
But the present case is independent of state practice. It is controlled by section 5 of the act of 1875. Under that statute as con
“If, in any suit commenced in a Circuit Court or removed from a state court to a Circuit Court of tlie United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it,” etc.
We cannot understand this statute without considering the mischief which it was designed to remedy. Under the old practice, when a want of jurisdiction did not appear on the face of the record, the objection could only be made by plea in abatement. Pleading to the merits operated as a final waiver of the defect, binding upon the court as well as the litigants. Under this rule the court would often discover on the trial that it had no jurisdiction of the case, and yet be without power to take judicial notice of the fact. Furthermore, by section 1 of the act of 1875 the restrictions upon suits by assignees of bills, notes, and other dioses in action which existed under the original judiciary act of 1789 were swept away and the door opened wide for fraud by collusive transfers. Section 5, quoted above, was framed to meet both of these difficulties. Its most notable feature is that it deals only with those defects of jurisdiction which are disclosed by evidence. For those which appear on the face of the pleadings, there was no need of legislation. Whenever the complaint alone, or aided by the record, failed to show the existence of jurisdiction, federal courts had from the beginning taken notice of the fact sua sponte, and dismissed the cause. Bingham v. Cabot, 3 Dall. 382, 1 L. Ed. 646; Emory v. Greenough, 3 Dall. 369, 1 L. Ed. 640; Capron v. Van Noorden, 2 Cranch, 126, 2 L. Ed. 229; Brown v. Keene, 8 Pet. 112, 8 L. Ed. 885. The practice in such cases previous to 1875 was precisely what it has been since. That statute assumes that the complaint will on its face show a case within the cognizance of federal courts, and deals only with defects of jurisdiction which exist dehors the pleadings. Here the courts were in need of statutory aid. As already explained, such defects could be attacked at common law only by plea in abatement, and were forever waived by pleading to the merits. As a matter of practical experience, however, the fact that the court was without jurisdiction would often first appear incidentally at the trial in the production of evidence; but as there had then been a plea to the merits, it was too late by the rule of the common law to deal with the subject. The result was that the jurisdiction of the courts was frequently imposed upon; but the courts, though cognizant of the wrong, felt themselves powerless to afford a remedy without the aid of legislation. De Sobry v. Nicholson, 3 Wall. 420, 427, 18 L. Ed. 263; Farmington v. Pillsbury, 114 U. S. 138, 143, 5 Sup. Ct. 807, 29 L. Ed. 114. Section 5 of the act of 1875 was designed to reach this evil, which it was feared would be
• This will appear if we now return to the propositions announced in the earlier part of this opinion. The first of these was that a proper allegation of jurisdictional facts in the complaint creates a prima facie case in -favor of jurisdiction. That rule was first clearly stated in Sheppard v. Graves, 14 How. 505, at page 510, 14 L. Ed. 518, as follows:
“The true doctrine applicable to the question is this: That although in the courts of the United States it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet, wherever jurisdiction, shall he averred in the pleadings, in conformity with the laws creating those courts, it must be taken prima facie as existing, and that it is incumbent on him who would impeach that jurisdiction for causes dehors the pleading to allege and prove such causes; that the necessity for the allegation and the burden of sustaining it by proof both rest upon the party taking the exception.”
The other doctrine announced in the same case, that the objection could only be taken by plea, has, of course, been done away with. But so far as we are aware, the rule just quoted is still the rule of the federal courts. What the defendant is attempting to do is to challenge the jurisdiction of the court, and in order to do that he must not simply deny the citizenship as alleged in the complaint, but must allege affirmatively facts showing that the plaintiff and defendant are citizens of the same state, or make such other averments as shall show directly that the cause is beyond the lawful cognizance of the court.
The latest declaration of the Supreme Court, that a proper averment showing diversity of citizenship makes out a prima facie case in favor of jurisdiction, is in Steigleder v. McQuesten, 198 U. S. 141, 25 Sup. Ct. 616, 49 L. Ed. 986, where the court says:
“The averment in the bill that the parties were citizens of different states was sufficient to make a prima facie case of jurisdiction, so far as it depended on citizenship.”
The sanie rule is declared by the Circuit Court of Appeals of the Seventh Circuit, in Adams v. Shirk, 117 Fed. 801, 55 C. C. A. 25: “The proper allegation of jurisdictional facts prima facie was true.” There the objection was raised in a common-law state by the general issue. That, however, is quite as broad a form of pleading as the general denial under the code, and would admit of any attack upon the jurisdiction of the court which would be possible under a denial in a code state. Furthermore, inasmuch as a federal statute permits the objection to be raised “at any time,” it would not be waived in the national courts by pleading to the merits under the one practice any more than the other.
“unless the facts, when made distinctly to appear on the record, create a legal certainty of the conclusion. Nothing less than this is meant by the statute when it provides that the failure of its jurisdiction on this account, ‘shall appear to the satisfaction of said Circuit Court.’ ”
In that case the question arose as to the amount in controversy. The trial court, after receiving the verdict of the jury, instituted an inquiry upon that subject, and reached the conclusion that the suit really did not involve an amount sufficient to confer, jurisdiction upon the court, and dismissed the cause. There was much evidence to support this conclusion, but the Supreme Court held that it was not sufficient to justify the dismissal, and reversed the cause, announcing the rule in the language above quoted.
In the case of Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. 521, 29 L. Ed. 725, the jurisdiction was based upon an allegation of diversity of citizenship. It appears from the record in the lower court (C. C.) 23 Fed. 835, that there was a general denial in the answer. In the course of the trial there was evidence tending to show that both parties were aliens, and the trial court for that reason, on motion of the defendant after verdict, dismissed the cause for want of jurisdiction. After referring to the statute of 1875, and the causes which led to its enactment, the Supreme Court says (page 590 of 116 U. S., page 522 of 6 Sup. Ct. [29 L. Ed. 725]):
“Neither party has the right, -however, without pleading at the proper time and. in the proper way, to introduce evidence the only purpose of which is to make out a case for dismissal. The parties cannot call on the court to go behind the averments of citizenship in the record except by a plea to the jurisdiction or some other appropriate form of proceeding. The case is not' to he tried by the parties as if there was a plea to the jurisdiction when no such plea has been filed. The evidence must be directed to the issues, and it is only when the facts material to the issues show there is no jurisdiction, that’the court can dismiss the case upon the motion of either party.”
In this case there was a general denial, and the evidence also tended_ strongly to show that the proper diversity of citizenship did not exist. But the Supreme Court ruled that notwithstanding that showing, _and notwithstanding a motion made in the trial court challenging its jurisdiction, still the trial court could not dismiss the cause" for want of jurisdiction because the plaintiff had had no opportunity, after the question was directly raised, to meet that issue. The present case is much stronger than the Hartog Case for sustaining the
The case of Hartog v. Memory is an unqualified holding that any lack of evidence to support the jurisdictional averments of the complaint must be challenged in the trial court, and cannot be raised for the first time on appeal; and it further holds that, in order to justify a dismissal by the trial court for want of jurisdiction, the evidence^ material to that subject must show directly and affirmatively that' there is no jurisdiction. This case has never been overruled; nor has it been in any way qualified except as we shall presently point out. On the contrary, it has been referred to as a controlling authority as frequently as any decision of the Supreme Court dealing with the subject of jurisdiction. The following are only the more important cases in which it has been thus cited: Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, 32 L. Ed. 690; Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682; Huntington v. Laidley, 176 U. S. 668, 20 Sup. Ct. 526, 44 L. Ed. 630; Imperial Refining Co. v. Wyman (C. C.) 38 Fed. 574, 576, 577, 3 L. R. A. 503; Hewitt v. Story (C. C.) 39 Fed. 158-160; Foster v. Cleveland, C., C. & St. L. Ry. Co. (C. C.) 56 Fed. 434-436; Gubbins v. Laughtenschlager (C. C.) 75 Fed. 615, 620; National Masonic Accident Association v. Sparks, 83 Fed. 225, 227, 28 C. C. A. 399; Terry v. Davy, 107 Fed. 50, 52, 46 C. C. A. 141; Adams v. Shirk, 117 Fed. 801, 804, 55 C. C. A. 25; Pennsylvania Company v. Bay (C. C.) 138 Fed. 203-205; Every Evening Printing Co. v. Butler, 144 Fed. 916, 918, 75 C. C. A. 657; Briggs v. Traders’ Co. (C. C.) 145 Fed. 254, 257; Kirven v. Virginia-Carolina Chemical Co., 145 Fed. 288-291, 76 C. C. A. 172; Gaddie v. Mann (C. C.) 147 Fed. 955, 959; Acord v. Western Pocahontas Corporation (C. C.) 156 Fed. 989; Crosby v. Cuba Railroad Co. (C. C.) 158 Fed. 144.
In the case of Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, 32 L. Ed. 690, Hartog v. Memory is reviewed, and some of the general language there used is said to have been irrelevant to the question before the court, and the decision is qualified to the extent of allowing a jurisdictional objection to be raised by any form of pleading. The substantial ground, however, of the decision in Hartog v. Memory is not questioned but reaffirmed. At page 325 of 129 U. S., page 292 of 9 Sup. Ct. (32 L. Ed. 690), Mr. Justice Harlan, referring to the evidence necessary to support a dismissal for want of jurisdiction under the act of 1875, says:
*251 “It is true that by the words of (he statute this duty arose only when It appeared to the satisfaction of the court that the suit was not one within its jurisdiction.”
And again, at page 326 of 129 U. S., page 292 of 9 Sup. Ct. (32 L. Ed. 690):
“But the , above rule is equally applicable in a case in which the averment as to citizenship is sufficient, and such averment is shown in some appropriate mode to be untrue.”
And again, on the same page:
“And the statute does not prescribe any particular mode In which such fact may he brought to the attention of the court. It may be done by affidavits, or depositions taken in the cause may lie used for that purpose. However done, it should be upon due notice to the parties to be affected by the dismissal.”
If it was error in the trial court in the Hartog Case, where the evidence upon the record affirmatively showed a lack of jurisdiction, to dismiss without giving the plaintiff an opportunity to rebut that evidence, surely here, where the evidence upon the record tends to support the averments of the complaint, and no question as to the sufficiency of that evidence was in any way raised in the trial court, it would be a pernicious practice for this court to set the judgment aside upon its attention being called to an informality in the evidence.
In Deputron v. Young, 134 U. S. 241, 10 Sup. Ct. 539, 33 L. Ed. 923, after verdict a petition was filed by the defendant in which he alleged that the plaintiff, Young, was not the real party in interest, and that the title to the property in controversy had been collusively transferred to her for the sole purpose of vesting apparent jurisdiction in the federal court. To this petition an answer was interposed, and a trial had which resulted in a denial of the application. Speaking of the proof required by section 5 of the act of 1875, the court says, at page 252 of 134 U. S., page 544 of 10 Sup. Ct. (33 L. Ed. 923):
‘In Barry v. Edmunds. 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729, it was held that a suit cannot properly be dismissed by a Circuit Court of the United Stales, as not involving a controversy within the jurisdiction of the court, unless the facts when made to appear on the record create a legal certainly of that conclusion. ‘Nothing less than this,’ said Mr. Justice Matthews, ‘is meant by tin* statute when it provides that the failure of its jurisdiction, on Bus account, shall appear to the satisfaction of said Circuit Court.’”
In Mexican Central Railway Company v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699, jurisdiction was rested upon diversity of citizenship which was properly pleaded in the complaint. There was a general denial. On the trial of the cause, by cross-examination of the plaintiff, evidence was developed which tended to show that the plaintiff, instead of being a citizen of Texas, as alleged in the complaint, was in fact a citizen of the territory of Arizona. If this had been true, it would have divested the -court of jurisdiction. The defendant asked leave to file a plea raising this question. The application was denied. So far as the record shows, there was no evidence to support the jurisdictional averments of the compliant, al
In Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682, the question again related to the sum or value in controversy. The defendant at the close of plaintiff’s evidence moved to dismiss the case upon the ground that the value of the property involved had been collusively exaggerated for the purpose of conferring jurisdiction upon the court. The motion was then denied, and the cause proceeded to verdict, which was in favor of the plaintiff for only $1. Thereupon the court again entertained the motion of the defendant and dismissed the cause. The Supreme Court, after an extended review of the authorities, reversed this action of the .trial court upon the following statement of the rule:
“Applying the law as heretofore stated by this court, in the cases cited, that a suit cannot be properly dismissed by a Circuit Court as not substantially involving a controversy within its jurisdiction, unless the facts, when made to appear on the record, create a legal certainty of that conclusion, we conclude that, in the present case, the want of jurisdiction was not made clear, and that the evidence before the court did not warrant a dismissal of the action for want of jurisdiction.”
The same doctrine is again announced in Hunt v. N. Y. Cotton Exchange, 205 U S. 322-333, 27 Sup. Ct. 529, 51 L. Ed. 821. That was a plea to the jurisdiction on the ground that the amount involved had been collusively stated for the purpose of creating jurisdiction. The court says:
“On the issue presented by the plea, the burden of proof was upon the appellant, and he was required to establish by a preponderance of the evidence that the amount involved was less than the jurisdictional amount.”
In support of this proposition Sheppard v. Graves, 14 How. 505, 14 L. Ed. 518, is cited by the court, thus clearly indicating that the rule declared in that decision, that a proper averment of jurisdictional facts creates a prima facie case and devolves the burden of rebutting it upon the defendant, was not changed either by the act of 1875 or by the conformity act.
The subject was brought under examination in this court in National Masonic Association v. Sparks, 83 Fed. 225, 28 C. C. A. 399; also by the Court of Appeals of the Third Circuit in Every Evening Printing Co. v. Butler, 144 Fed. 916, 75 C. C. A. 657. In the last case the question related to the citizenship of the parties, and was presented in the answer by the general issue. The case arose in the state of Delaware, where the common-law procedure is still in force; but, as already remarked in regard to the case of Adams v. Shirk, the plea of the general issue at common law would admit any defense which a general denial would admit under the codes; and the doctrine declared by the court is quite as applicable as it would have been if the case had arisen in a code state. There the court says:
“Even if defendant below had challenged the jurisdictional fact of diverse citizenship, as alleged in the declaration, at the proper time, by appropriate plea or notice, the burden of proving by competent evidence its own affirmative averment in that regard would have fallen upon it.”
••The court was acting under the authority of the act of 1875, and It is settled that it must clearly appear that the court is being Imposed upon, in ordrito justify a dismissal of the cause; and we may add that this rule is applied with, increased rigor when the presentation of the objection is long delayed, as when the case has been tried and a verdict and judgment on the merits has been reached before the attention of the court has been drawn to it; presupposing, of course, that the lack of jurisdiction Is not apparent on the record. Deputron v. Young, 134 U. S. 241, 10 Sup. Ct. 539, 33 L. Ed. 923.”
Surely if this is the rule when the objection is taken in the trial court, it ought to be enforced with even greater rigor when, as here, the objection is for the first tune raised on appeal. In fact, such an objection ought to-be conclusively barred in the appellate court, because there it is impossible to produce the evidence showing the actual citizenship of the parties.
The only cases in apparent conflict with the rules which we have been considering are Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579, and a case in this circuit based wholly upon that case, Cole v. Carson, 153 Fed. 278, 82 C. C. A. 408. Roberts v. Lewis was an action of ejectment arising in the state of Nebraska, where the code practice is in force. The answer combined a plea of the statute of limitations with a general denial. At the conclusion oE the evidence the jury, by direction of the court, made a special finding which disposed of all the merits of the controversy, but contained no reference to the citizenship of the parties. Upon the finding, judgment was entered in favor of the plaintiff. The Supreme Court, in reversing the judgment, uses the following language at page 658 of 144 U. S., page 783 of 12 Sup. Ct. (36 L. Ed. 579):
■‘The necessary consequence is that the allegation of the citizenship of the parties, being a material allegation properly made in the petition, was put in issue by the answer, and like other affirmative and material allegations made by the plaintiff and denied by the defendant, must be proved by the plaitiW."’
We are unable to harmonize that language with the uniform holding of the Supreme Court, both previous to the decision in which it was employed, and since. It overlooks the cardinal fact that the jurisdictional averments of the complaint are not made as a basis of proof at the trial, but to establish the jurisdiction of the court over the action at its commencement. It is no doubt true that the Supreme Court, in order to give full effect to the act of 1875, has permitted tlie question of jurisdiction to be raised in any way that will bring
“A verdict is bad if it varies from the issue in a substantial manner, or if it finds only a part of that which is in issue. Although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet, if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered upon the verdict.”
The same rule was again enforced by the court speaking by Chief Justice Marshall in Barnes v. Williams, 11 Wheat. 415, 6 L. Ed. 508:
“Where in a special verdict the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, this court will not render judgment upon such an imperfect special verdict, but will remand the case to the court below with directions to award a venire facias de novo.”
The subject came again before the court in Hodges v. Easton, 106 U. S. 408, 1 Sup. Ct. 307, 27 L. Ed. 169, where it is declared that a special verdict which fails to find the facts upon all the material issues raised by the pleadings will not support a judgment, although it is recited in the judgment that it is based upon a special verdict of the jury, “and facts conceded or not disputed upon the trial.”
This was possibly the ground of decision in Roberts v. Lewis, for the opinion at its conclusion speaks of there being no “finding upon this essential point.” Such an explanation of the case is suggested in Toledo Traction Company v. Cameron, 137 Fed. 49, 53, 69 C. C. A. 28.
Wells Co. v. Gastonia Co., 198 U. S. 177, 25 Sup. Ct. 640, 49 L. Ed. 1003, is not in point, because there the issue related not to the domicile, but to the corporate existence, of the plaintiff. Such a defense may properly be presented under a general denial, or the form of answer employed in that case. It is also true that the evi
Two objections might be interposed to the cases we have cited: (1) It might be urged that Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. 521, 29 L. Ed. 725, Adams v. Shirk, 117 Fed. 801, 55 C. C. A. 25, and Every Evening Printing Company v. Butler, 144 Fed. 916, 75 C. C. A. 657, arose in states having the common-law practice, and that for this reason, under the conformity act, the federal courts in those cases were controlled by the common-law rule that objections to the jurisdiction must be taken by plea in abatement. We are not dealing, however, with the conformity act, but with section 5 of the act of 1875. By that statute the rule of the common law as to the manner of raising objections to the jurisdiction of the court is abrogated. It is a federal statute, and is binding upon the federal courts regardless of local practice. The rule of the common law related to the order of defenses, and required those relating to jurisdiction to be first and separately taken. The act of 1875 provides that such objections may be taken “at any time,” and, as that statute has been interpreted by the Supreme Court, they may also be taken in any manner. Here, then, we have the rule of practice for all federal courts abrogating the rule of the common law in regard to pleas in abatement. That rule being abrogated, objections to the jurisdiction may be taken in states having the common-law practice under the general issue, if it may be taken in code states under the general denial. The cases referred to are therefore as much in point as they would have been if they had arisen in states having the code practice. (2) It might be contended that Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729, Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682, and Hunt v. Cotton Exchange, 205 U. S. 322, 27 Sup. Ct. 529, 51 L. Ed. 821, turned not upon the citizenship of the parties, but upon whether the amount involved was sufficient to confer federal jurisdiction, and that from this circumstance these cases belong in a class by themselves. To such a contention there are several answers: (a) Though the feature is obvious, the opinions make no reference to it as a ground of decision. On the contrary, they lay down a general rule which clearly embraces all objections to jurisdiction, (b) They turn not upon the circumstance re terrecí to, but upon a construction of section 5 of the. act of 1875. They declare the meaning of the phrase in that statute, “shall appear to the satisfaction of said Circuit Court,” and say that that language requires proof of the want of jurisdiction to a legal certainty, (c) The statute itself makes no such classification as this objection suggests. It deals with all objections to the jurisdiction of the court which do not appear on the face of the pleadings but do appear by evidence, and requires that such objections, whether based on the citizenship of the parties or the amount in controversy, shall be established by the party raising them “to the satisfaction of the. Circuit Court.” (d) Jurisdictional objections depending upon the amount in controversy are necessarily involved in the merits of the cause. Eor this reason they are sure not to he overlooked at the trial, while objections arising
But if we turn aside from this discussion of authorities and ask ourselves the central question, which practice will best promote justice? the answer is so plain as to make the discussion itself seem almost a reproach to the law. The practice here advocated simply requires that frankness toward opposing counsel and that candor towards the court which at the present time is fundamental to the procedure of all English-speaking communities. It imposes no burden except that of raising an objection directly and clearly in the court where it can be met with the least trouble to courts and the leastf expense to litigants. The other practice, on the contrary, authorizes clandestine pleading and captious practice; the keeping of an objection in ambush for the purpose of speculating upon the result of the trial, and then, if that result is unfavorable, bringing the objection forward for the first time in an appellate court, where it will result in the greatest loss of time to the courts themselves, and the greatest expense to the litigants, and make a mockery of justice in the judgment of all men outside of the legal profession.
Under the doctrine which we have thus considered, at perhaps too great length, the question of jurisdiction ought to be ruled against the plaintiffs in error. The allegations of citizenship in the complaint satisfy the most exact standards, and there has been no affirmative showing to overcome the prima facie case which they create.
The same result might be reached upon narrower grounds. This cause was tried by the court without a jury, and a general finding made in favor of the plaintiff. It has been, repeatedly held by the Supreme Court that an appellate court cannot in such a case look into the evidence for the purpose of deciding whether it supports the finding. If a bill of exceptions is preserved embodying the testimony and the rulings of the court on the trial of the case, the appellant court can only look into such bills of exceptions for the purpose of deciding whether the lower court committed error in the course of the trial in its rulings upon questions of evidence and other like matters. Viewing the general denial of the answer in the most favorable light possible for the defendant, it presented the citizenship of the plaintiff as one of the issues in the cause for the decision of the trial court. That court by its general finding has found this issue, as well as those relating to the merits, in favor of the plaintiff. Under the rulings of the Supreme Court in the following cases, we are not at liberty to look into the record for the purpose of determining that such finding was not supported by the evidence as to every issue. Norris v. Jackson, 76 U. S. 125, 19 L. Ed. 608; Insurance Company v. Folsom, 85 U. S. 249, 21 L. Ed. 827; Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373. See, also, U. S. Fidelity Co. v. Board of Commissioners, 145 Fed. 144, and cases cited on page 151, 76 C. C A. 114.
It is urged that it is the duty of the court to look into all parts of the record for the purpose of discovering a want of jurisdiction.
If, however, the foregoing limitation be waived and we examine the evidence, it is sufficient to support the finding that plaintiff at the commencement of the action was a citizen of Illinois. He was asked, while testifying as a witness, where he resided, and stated that he lived at Vandalia, in that state. The record also shows that he was engaged in business there, having an extensive manufacturing establishment at Golden Gate, which he had been conducting for at least five years. The long correspondence which is embodied in the record is also addressed to him at such place of business. This is the showing on the subject of plaintiff’s citizenship. While it is not technically precise and certain, it is sufficient to support jurisdiction.
Toledo Traction Company v. Cameron, 137 Fed. 48, 69 C. C. A. 28, is instructive not only as to the particular matter now under consideration, but as to all features of the present case. The complaint there contained a proper allegation of diversity of citizenship. A general denial was embodied in the answer. The case was tried before a jury. No evidence was adduced as to the citizenship of either of the parties. At the conclusion of the testimony a motion was made by the defendant for a directed verdict in its favor. This was overruled, and the cause submitted to the jury, who returned a verdict in -favor of the plaintiff upon which judgment was entered. Thereafter the defendant moved that the verdict and judgment be set aside, and for a new trial, and upon the hearing of that motion urged for the first time that no evidence had been offered by plaintiff at the trial to prove the citizenship of the parties. Thereupon the court set aside the judg
In Adams v. Shirk, 117 Fed. 801, 55 C. C. A. 25, there were proper averments in the complaint showing that the plaintiff was a citizen of Indiana, and the defendant a citizen of Illinois. To this complaint there was an answer setting up the general issue. Upon this issue the residence of the plaintiff below, the defendant in error, Shirk, became one of the controverted questions on the trial. It was urged upon appeal that under the general denial the plaintiff below had the burden of showing that at the time of the commencement of the action he was a citizen of the state of Indiana. On this subject the court says:
“The question is npt, as plaintiff in error contends, whether the defendants in error have discharged the burden of proving that Elbert W. Shirk was a citizen of Indiana. The proper allegation of .-jurisdictional facts, prima facie,- was true. Simply to deny that Elbert TV. Shirk was a citizen of Indiana would not show a want of jurisdiction. I-Ie may have been a citizen of some other state than Illinois, whereof plaintiff in error was a citizen. That Elbert TV. Shirk, was a citizen of Illinois was a material and necessary allegation. It was an affirmative averment, the burden of iiroving which, even under a proper plea in abatement, would have fallen on the plaintiff in error. Under the plea in the present ease, the office of which was no broader than a motion or a suggestion to the court to protect itself from imposition,*259 the burden most assuredly was upon llio moving party. The plaintiff in error introduced no evidence on the subject. The evidence of defendants in error does not establish that Elbeit W. Shirk was a citizen of Illinois, and that the Circuit Court was imposed upon.”
Here, however, there was strong affirmative proof tending to show that Shirk was a citizen of the same state as Adams, and the question was directly raised in the trial court. If that showing was insufficient to justify the court in dismissing the cause for want of jurisdiction, surely here, where the affirmative evidence tends to support the jurisdictional averments of the complaint, there is no just ground for such action.
The only other decision to which we shall call attention on this branch of the case is Sun Printing & Publishing Association v. Edwards, 194 U. S. 377, 24 Sup. Ct. 696, 48 L. Ed. 1027. There the complaint alleged that “plaintiff is a resident of the state of Delaware.” This, by the uniform holding of federal courts, was insufficient to support jurisdiction. The averment was admitted in the answer. On the trial the plaintiff testified:
‘•Just prior to my going to work upon the New York Sun, I was the publisher and business manager of the livening Journal at Wilmington, Del., and president of the company. After my discharge by the Sun, i finally secured a place with the New Haven Paladimn. and 1 was there a while. One of the reasons I left the New Haven Paladimn was that it was too far away from home. I lived in Delware, and I had fo go back and forth. My family were over in Delaware.”
The averment of the complaint, and this testimony of the plaintiff, constituted all the evidence there was in the record as to his citizenship. It nowhere directly rises above the proof of his residence. But the Supreme Court held' that, taking the averment and evidence together, they justified the inference that he was a citizen of Delaware, and sustained the federal jurisdiction. It will be observed that the showing here was less strong than in the present case, because there was no direct allegation of the plaintiff’s citizenship in the complaint, as there is here. The evidence in that case as to plaintiff’s residence seems hardly more persuasive on the subject of citizenship than the evidence in the present case. The cases are alike in the fact that .the jurisdiction of the Circuit Court was not questioned in the Sun Printing Company Case by the defendant in the court below; hut that question was there clearly open in the appellate court, because the complaint itself only alleged residence, and hence failed to make a prima facie showing of jurisdiction. It is manifest that there is no consideration for the dismissal of the present case which was not there present, and that in this case the clear and direct averment of the plaintiff’s citizenship in the complaint makes at least one feature in favor of sustaining jurisdiction which did not exist in that case.
In whatever aspect, therefore, the question is viewed, wc think the jurisdiction of the trial court should be sustained.
There is an error, however, assigned as to the rejection of certain evidence which is well taken. One of the defenses set up in the answer was that the defendant gave to the plaintiff, in the latter part of August, specific directions in writing to bill certain cars to New
It will therefore be ordered that, unless plaintiff remits this amount from his judgment, the judgment be set aside, and a new trial granted. In case the terms stated are accepted, the judgment as reduced will be affirmed, without costs to either party in this court.
Dissenting Opinion
(dissenting). I am unable to concur in the foregoing opinion, and feel it my duty to point out wherein I think it has departed from decisions of the Supreme Court and from what 1 have deemed to be the settled doctrine in this circuit. Reduced to brief terms, the opinion denies the authority of Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579; holds that an averment of diverse citizenship in a complaint, though denied in the answer, makes a prima facie case, in favor of jurisdiction of a Circuit Court of the United States, and casts upon the defendant the burden of sustaining his denial by proof to a legal certainty, although the state procedure, adopted by the conformity act of 1873, is otherwise; and applies the rule of Norris v. Jackson, 76 U. S. 125, 19 L. Ed. 608, to a case involving the existence of facts upon which the jurisdiction of a Circuit Court of the United States depends. In other words, it is held that when the trial is by the court without a jury, and there is a general finding and judgment for plaintiff, an appellate court, cannot, in the absence of special findings or requests therefor or for declarations of law, look into the bill of exceptions to examine the evidence on an issue made by the pleadings as to diversity of citizenship upon which jurisdiction depends.
The opinion of the Supreme Court in Roberts v. Lewis is plain and concise. There is no doubt about what was held. It was averred in the petition in an action in ejectment in the Circuit Court for the District of Nebraska that plaintiff was a citizen of Wisconsin and defendant a citizen of Nebraska. The answer contained a specific defense to the merits, and also a general deniál. The jury returned a special verdict covering the merits, but made no finding as to the. citizenship of the parties. Under the Nebraska Code of Civil Procedure a general 'denial in an answer puts in issue averments of jurisdictional facts in a petition. On this the Supreme Court held that, as long as rules-of pleading in courts of the United States remained as at common law, the requisite citizenship of the parties, if duly alleged in the petition, could only he denied by a plea in abatement and was admitted by pleading to the merits, but that since the conformity act all defenses are open to a defendant in a Circuit Court of the United States under any form of pleading that would he available under a like pleading in the courts of the state in which the Circuit Court is held. Mr. Justice Gray, who spoke for the court, said:
“The necessary consequence is that the allegation of the citizenship of tlio parties, being a material allegation properly made in the petition, was put in issue by the answer, and, lilte other affirmative and ma terial allegations made*262 by the plaintiff and denied, by the defendant, must be proved by the plaintiff. The record showing no proof or finding upon this essential point, on which the jurisdiction of the 'Circuit Court depended, the judgment must be reversed, with costs, for want of jurisdiction in the Circuit Court, and the case remanded,” etc.
I can find no indication that the Supreme Court has ceased to regard this case with approval. On the contrary, it was cited and the above doctrine again announced as late as Wells Company v. Mfg. Co., 198 U. S. 177, 182, 25 Sup. Ct. 640, 49 L. Ed. 1003. It was-also cited in Southern Pacific v. Denton, 146 U. S. 202, 209, 13 Sup. Ct. 44, 36 L. Ed. 942, Mexican Central v. Pinkney, 149 U. S. 194, 206, 13 Sup. Ct. 859, 37 L. Ed. 699, and Mattingly v Railroad, 158 U. S. 53, 57, 15 Sup. Ct. 725, 39 L. Ed. 894. Moreover, this court has twice followed and applied it in cases which arose, as the case now before us did, in Missouri, and involved the practice act of that state. Yocum v. Parker, 66 C. C. A. 80, 130 Fed. 770; Cole v. Carson, 82 C. C. A. 408, 153 Fed. 278. Roberts v. Lewis was also followed by the Court of Appeals of the Sixth Circuit in a case where it became necessary to apply the Kentucky Code—Roberts v. Langenbach, 56 C. C. A. 253, 119 Fed. 349; and again by the same court in Toledo Traction Co. v. Cameron, 69 C. C. A. 28, 137 Fed. 48, where the Ohio Code was applied. '
Does an averment of diverse citizenship in a complaint in an action at law make a prima facie case in favor of jurisdiction, though it is properly denied in defendant’s pleading according to the provisions of the local procedure? Does it cast upon defendant, who has duly taken issue upon it, the burden of disproving it to a legal certainty? We must bear in mind that in Missouri, where the case at bar arose, there is a modern Code of Civil Procedure under which a general denial in an answer puts in issue averments of jurisdictional facts in the complaint. An affirmative answer to the above questions would seem to violate all settled rules of code pleading and practice. It would certainly not accord with those prevailing in this circuit. In Roberts v. Lewis, supra, the court said that plaintiff’s averment of citizenship, denied by defendant in his answer, “must be proved bjr the plaintiff.” In Wells Company v. Mfg. Co., 198 U. S. 177, 182, 25 Sup. Ct. 640, 49 L. Ed. 1003, the plaintiff, to invoke the jurisdiction of the Circuit Court, - averred, among other things, that it was a corporation of Mississippi. The defendant denied the averment upon information and belief. . The Supreme Court, speaking by Mr. Justice Harlan, held the denial sufficient to raise the issue, and said that:
“As the jurisdiction of the courts of the United States must always appear affirmatively, of record, it became necessary, under existing statutes and under the rules of practice and pleading in North Carolina (where the action was brought), for the plaintiff to prove that it was a corporation of Mississippi.”
In Cole v. Carson, supra, the unanimous view of the three Circuit Judges of this circuit who sat in the case was that, following the conformity "act and the Missouri Code of Civil Procedure, a general denial put in issue an averment of. diverse citizenship in the petition, and
Various reasons are assigned for disregarding these decisions:
(1) The policy of the law permitting the commingling in an answer of an issue upon a jurisdictional fact with issues upon the merits is doubted. As to this I will oidy say that since the conformity act the practice, where it accords with that of the state, is upheld without question by what I think is an unvarying line of decisions of the federal courts; and, further, that it is a feature of practically every modern reformed code of civil procedure.
(2) Sheppard v. Graves, 14 How. 505, 14 L. Ed. 518. As much reliance is placed on this case, which arose before the passage of the conformity act, it is well to observe closely what was decided. Defendants interposed a plea in abatement, attacking an averment of plaintiff’s citizenship and therefore the jurisdiction of the trial court. They also filed an answer containing a general denial and a declaration that they did not waive their plea. The trial court struck out the plea, and ruled that plaintiff was not required to prove his averment of citizenship. The Supreme Court affirmed the action of the court below, and held: First, that a general denial made no issue on a jurisdictional fact, and that the practice was governed by the “time-tested rules of the common law.” “Again,” the court said, “by one of those rules, believed to be without an exception, it is ordained that objections to the jurisdiction of the court, or to the competency of the parties, are matters pleadable in abatement only, and that if, after such matters relied on, a defense be interposed in bar and going to the merits of controversy, the grounds alleged in abatement become thereby immaterial, and are waived.” So the plea to tlie jurisdiction was held to have been waived by the answer to the merits and to have been properly stricken out. And, second, that when jurisdiction is averred in plaintiff’s pleading it must he taken prima facie as existing-, and, if defendant would impeach it for causes dehors the pleading, the burden is on him both to allege and prove such causes. Now it is said that the first doctrine is done away with (by the conformity act and the state codes where they exist), but that the second still obtains. I think, however, it is altogether clear from a reading of the opinion of the Supreme Court that the second was considered as following from and depending -upon the first. This would naturally be so, for at common law a plea to the jurisdiction founded on facts outside the record did not prove itself or disprove averments in the petition; the burden of proof was on him who interposed the plea. Moreover, in that case the plea had been stricken out as having been waived, and as the court said that the general denial in the answer did not, under the common law, put in issue plaintiff’s averment of his citizenship, the case stood solely upon that averment, and it was necessarily held to be prima facie true. This case does not seem to me to afford a substantial basis for holding that, upon an issue of fact as to the citizenship of a party properly raised by answer
(3) Again, reliance is placed on an observation in Steigleder v. McQuesten, 198 U. S. 141, 25 Sup. Ct. 616, 49 L. Ed. 986, that “the averment in the bill that the parties were citizens of different states was sufficient to make a prima facie case of jurisdiction so far as it depended on citizenship.” But this was said with reference to the particular condition of the pleadings in the case, and not with reference to the proof upon an issue. It was averred in the bill in that case that plaintiff was a citizen of the state of Massachusetts, and defendants were citizens of the state of Washington. There was no denial of this averment by the answer. After the proofs were taken, defendants moved the trial court to dismiss the cause for want of jurisdiction, because all the parties, plaintiff and defendants, were “residents” of the same state — Washington. The Supreme Court held first, that residence and citizenship were wholly differeht things, and therefore the motion raised no question of jurisdiction; second, but as the trial court treated the question as raised it would do likewise, and then it concluded from an examination of the evidence that plaintiff was actually a citizen of Massachusetts and was but temporarily residing in Washington. In determining these facts from the evidence, plaintiff’s averment of citizenship was not referred to as having any probative effect. Mr. Justice Harlan delivered the opinion in the case, and later during the same term he delivered the opinion in Wells Company v. Mfg. Co., supra, in which it was held that a denial in an answer of plaintiff’s averment of corporate citizenship put the burden on plaintiff of proving it.' It is quite manifest that the observation quoted from the first opinion was not intended to put the burden of proof on a defendant who in an action at law took issue in a proper way. I may observe in passing, however, that Steigleder v. McQuesten was a suit in equity, and it may be questioned whether the conformity act requires an adjustment of equity practice in courts of the United States to that of the states, though this matter was not adverted to by the Supreme Court.
(4) Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. 621, 29 L. Ed. 725. The point of decision in this case was overruled in Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, 32 L. Ed. 690, and little was left of the case, but certain expressions in the opinion are relied on here. It appears from the statement of facts in that case that the answer contained a general denial and other defenses to the merits. The Supreme Court, in approaching the matter for decision, assumed that plaintiff’s averment of citizenship was not put in issue because there was no plea in abatement. The reason for this assumption becomes apparent when it is noted that the case arose in Illinois, where common-law rules prevailed under which such a plea was the only method of tendering the issue, and a general denial or other d ense .on the merits amounted to a waiver of objections to the jurisdiction. It should not be inferred that the conformity act abrogated for courts of the United States the common-law procedure of a state. It merely
(5) Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729; Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682; Hunt v. Cotton Exchange, 205 U. S. 322, 27 Sup. Ct. 529, 51 L. Ed. 821. In these cases, and there are many like them, the question was not as to the citizenship of the parties, but whether the requisite sum or value was in controversy; and the rule is that the absence of that ground of jurisdiction must be shown to a legal certainty. It is clear, I think, that this rule is due to the peculiar character of the question involved, and it should not be confounded with that relating to citizenship, nor the limitations appropriate to one be imported into the other. It doubtless grew out of the fact that in most cages in which the existence of a dispute over a jurisdictional sum is questioned the claim of a plaintiff as set forth in his complaint is in itself one of the elements of the controversy and performs an evidential office. When it is disputed by defendant it furnishes proof of the existence of a controversy over the shm demanded. And there is obvious reason for saying that the claim of a plaintiff, not clearly fictitious on its face, but which may possibly have legal foundation, makes a case for jurisdiction until it is overthrown by proof to a legal certainty, for as long as there is any doubt or uncertainty a dispute naturally remains to be determined upon a trial of the merits. The very lack of legal certainty to the contrary shows the continued existence of controversy. In many other cases involving property or property rights there is no fixed measure of value, but it rests largely in estimate or opinion, and is difficult of accurate ascertainment. These considerations, however, do not apply to questions as to the citizenship of the parties, and hence the logic of the different rule. The one stands upon the mere existence of controversy, not how the controversy shall finally be resolved, while the other stands upon the fact of diverse citizenship, to be definitely determined when questioned.
May an appellate court look into the bill of exceptions -in a case like this and examine the evidence bearing on an issue upon a jurisdictional fact, or does the failure of the trial court to make a special finding on the issue and of counsel to make requests result in sealing up that part of the record? The fifth section of the judiciary act of March 3, 1875, imposes the duty of directing a dismissal if the cause does not really and substantially involve a controversy properly within the jurisdiction of the Circuit Court. That'duty is to be exercised “at any time,” and, so far as it rests upon an appellate court, it cannot be effected by wliat the Circuit Court or the «parties did or re-
The result of the evidence in this case is debatable, and I shall not further refer to it than to say that, as an averment of residence is universally held not one of citizenship, mere proof of residence without more is not proof of citizenship.
Concurrence Opinion
concurs in the result on the ground that, inasmuch as no request or motion was made at the close of the trial that the court should hold and declare as a matter of law that there was no substantial evidence to sustain the jurisdictional averments of the complaint and that it should dismiss the action on that account, that question is not open for consideration in this court, and on the further ground that, if it were open, there was sufficient proof to sustain the jurisdictional allegations.
