Hartog v. Memory

• Decision Date: 01 February 1886
• Citation: 29 L.Ed. 725,6 S.Ct. 521,116 U.S. 588
• Parties: HARTOG v. MEMORY. 1 Filed
• Court: U.S. Supreme Court

6 S.Ct. 521

116 U.S. 588

29 L.Ed. 725

HARTOG v. MEMORY.¹

Filed February 1, 1886.

This is a writ of error brought under section 5 of the act of March 3, 1875, (chapter 137, 18 St. 470,) for the review of an order dismissing a suit begun in the circuit court. The record shows that on the nineteenth of September, 1884, William Hartog sued Henry Memory in an action of assumpsit for a breach of a contract to deliver property sold. In the declaration, Hartog is described as a citizen of the kingdom of Holland, and Memory as a citizen of Illinois. On the eighth of October, Memory filed three pleas: (1) General issue; (2) statute of limitations of Illinois; and (3) limitation laws of Holland, where the cause of action accrued. On the eighth of November Hartog obtained a commission for the taking of testimony in Holland, and Memory was ruled to file cross-interrogatories by the following Monday. On the ninth of May, 1885, Memory withdrew his plea of limitation by the laws of Holland, and Hartog filed a replication to the plea of the statute of limitations of Illinois. The case was on the same day tried with a jury. On the trial the plaintiff introduced 'evidence to sustain the issues on his behalf, which evidence also shows that said plaintiff was a subject of the king of Holland, and also shows that said defendant has been doing business in the city of Chicago for several years. And thereupon said defendant offered himself as a witness to maintain the issues on his behalf in said cause, and during the progress of his examination he was asked by his counsel the following questions, and gave the following answers: 'Question. Are you a citizen of the United States, Mr. Memory? Answer. No, sir. Q. Of what dominion or kingdon are you a citizen? A. I am a citizen of Great Britain, sir.' And thereupon said plaintiff, by his counsel, cross-examined said Memory as follows: 'Question. How long have you resided and done business in Chicago? Answer. About from eight to ten years, I suppose. Q. Where did you do business before that? A. I did business for a short time in New York.' It also appeared that defendant was in Holland twice in 1879, and that the alleged contract was entered into there. Which was all the evidence introduced by either party on the question of citizenship or residence.'

The jury, on the eleventh of May, brought in a verdict against Memory for $2,497. A motion for new trial was then entered. On the first of June, before judgment on the verdict, the defendant filed the following motion: 'And now comes the defendant, by his attorney, and it appearing that the defendant is not a citizen of the United States, or of any state, but a citizen and subject of Great Britain, and that all the parties to this suit are aliens, and that the court has no jurisdiction in this cause, the said defendant moves that this case be dismissed for want of jurisdiction in this court.' This motion was granted, and the suit dismissed June 10th. 23 Fed. Rep. 835. To reverse that order this writ of error was brought.

Julius Rosenthal and A. M. Pence, for plaintiff in error.

E. B. Sherman, for defendant in error.

WAITE, C. J.

It was well settled before the act of 1875 that when the citizenship necessary for the jurisdiction of the courts of the United States appeared on the face of the record, evidence to contradict the record was not admissible except under a plea in abatement in the nature of a plea to the jurisdiction, and that a plea to the merits was a waiver of such a plea to the jurisdiction. Farmington v. Pillsbury, 114 U. S. 143, S. C. 5 Sup. Ct. Rep. 807, and cases there cited. In its general scope this rule has not been altered by the act of 1875; but before that act was passed in had been held that the rule prevented the courts from taking notice of colorable assignments or transfers to create cases for the jurisdiction of the courts of the United States in the absence of a plea in abatement or to the jurisdiction, and, as that act 'opened wide the door for frauds upon the jurisdiction of the court by collusive transfers so as to make colorable parties and create cases cognizable by the courts of the United States,' we held in Williams v. Nottawa, 104 U. S. 209, 211, that the statute changed the rule so far as to allow the court at any time, without plea and without motion, to 'stop all further proceedings, and dismiss the suit the moment a fraud on its jurisdiction was discovered.' Neither party has the right, however, without pleading at the proper time and in the proper way, to...