Hartog v. Memory
| Decision Date | 11 May 1885 |
| Citation | 23 F. 835 |
| Parties | HARTOG v. MEMORY. |
| Court | U.S. District Court — Northern District of Illinois |
Rosenthal & Pence, for plaintiff.
Austin Bierbower and W. P. Black, for defendant.
This action was brought by the plaintiff, a citizen of Rotterdam Holland, against the defendant, upon a contract for the delivery of pork, made at Rotterdam. In the declaration it is alleged that the defendant is a citizen of the state of Illinois. The defendant pleaded the general issue, and the case was tried, and a verdict rendered for the plaintiff for $2,497. Upon the trial, the defendant, at the close of his testimony, testified that he had, for eight or ten years resided, and been doing business, at Chicago; but was not a citizen of the United States, but was a citizen of Great Britain; from which testimony it appeared, for the first time to the court, near the close of the trial, that the controversy in the suit was not one between a citizen of a state of the United States and a citizen of a foreign state but was one between two aliens, of which this court has no jurisdiction, under the laws and constitution of the United States. After verdict, the defendant moved to dismiss the suit for want of jurisdiction.
It seems clear to me, under the act of March 3, 1875, that the motion must prevail. Under the practice as it stood before the passage of that act, if the defendant did not plead specially to the want of jurisdiction, and there were proper allegations in the declaration showing the jurisdiction, or it otherwise appeared of record in the case, the defendant could not take advantage of any defect in the jurisdiction appearing upon the trial or during the progress of the cause. The matter of jurisdiction, to a certain extent, was made a question of pleading. If the requisite diverse citizenship appeared of record, the defendant, if he wished to dispute it, must do so by special plea in abatement, the purpose of which rule was to keep the issue upon jurisdiction and the issue upon the merits separate and distinct. And the order of pleading was that pleas to the jurisdiction should be put in and tried first. And if there was a plea to the merits, the right to plead to the jurisdiction was waived, although the court might allow the defendant to withdraw his plea to the merits for the purpose of pleading to the jurisdiction. This was the natural and proper order of pleading. But the result was that the court frequently found itself engaged in the hearing of controversies which it was never intended should be litigated in the federal courts, and over which it had in fact no jurisdiction under the constitution.
All that was necessary to bring about this state of things was to have a collusive understanding between the parties, whereby the question of diverse citizenship should not be raised. In that way, by putting the proper allegations into the record, which it was not necessary should be sworn to, and the defendant failing to plead to the jurisdiction, any controversy between two aliens, or between two citizens of the same state, might be litigated in the federal courts. The court, by its own rules and decisions, was powerless to remedy the evil, and it was not remedied until by the act of March 3, 1875. Section 5 of that act provides--
'That if, in any suit commenced in a circuit court, or removed from a state court to a circuit court of the 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 to the court from which it was removed, as justice may require. * * * '
This provision wholly changes the rule that, in order to take advantage of the want of jurisdiction, the matter must be specially pleaded. It makes it the duty of the court at any stage of the proceedings to dismiss the case when...
To continue reading
Request your trial
-
Hill v. Walker
...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 F. 835, that there was general denial in the answer. In the course of the trial there was evidence tending to show that both parties were aliens, and......
-
Imperial Refining Co. v. Wyman
...evidence that overthrew the jurisdiction was held pertinent under the issues that were made upon the merits, or within the case of Hartog v. Memory, supra, where the plea abatement was required. By my best judgment is that it falls within the latter case, and must be controlled by it, and t......
-
Turmine v. West Jersey & Seashore R. Co.
...satisfaction of the court that it is one where it has no jurisdiction, and, in my judgment, should rule the case at bar." Hartog v. Memory (C. C.) 23 F. 835, 836. "Suppose an action were brought for a manifestly trivial injury, such as a bruise or a sprained ankle, and the court can see tha......