When the jurisdiction of a circuit court of the United States
over the parties by reason of citizenship appears on the face of
the record, and no issue is joined respecting it, evidence not
pertinent to the issues made by the pleadings cannot be introduced
solely for the purpose of making out a case for dismissal by reason
of the absence of the proper citizenship.
When a circuit court of the United States is led to suspect from
any cause that its jurisdiction has been imposed upon, collusively
or otherwise, it may protect itself against fraud or imposition by
an inquiry made of its own motion in such manner as it may direct,
and by such further action thereafter as justice may require.
The evidence on which a circuit court acts in dismissing a suit
for want of jurisdiction must not only be pertinent either to the
issue made by the parties or to the inquiry instituted by the
court, but it must also appear of record if either party desires to
invoke the appellate jurisdiction of this Court for the review of
the order of dismissal.
This was a writ of error brought under § 5 of the Act of March
3, 1875, c. 137, 18 Stat. 370, for the review of an order
dismissing a suit begun in the circuit court. The record showed
that on the 19th 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 was described as
a citizen of the Kingdom of Holland, and Memory as a citizen of
Illinois. On the 8th of October, Memory filed three pleas: 1,
general issue; 2, statute of limitations of Illinois; and, 3,
limitations laws of Holland, where the cause of action accrued. On
the 8th 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 9th 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,
Page 116 U. S. 589
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:"
"Q. Are you a citizen of the United States, Mr. Memory?"
"A. No, sir."
"Q. Of what dominion or Kingdom 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:"
"Q. How long have you resided and done business in Chicago?"
"A. 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 11th of May, brought in a verdict against
Memory for $2,497. A motion for new trial was then entered. On the
1st 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 F.
835. To reverse that order this writ of error was brought.
Page 116 U. S. 590
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
After stating the facts in the language reported above, he
continued:
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,
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,
104 U. S. 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
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 be 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 facts material
to the
Page 116 U. S. 591
issues show there is no jurisdiction that the court can dismiss
the case upon the motion of either party.
If, in the course of a trial, it appears by evidence which is
admissible under the pleadings, and pertinent to the issues joined,
that the suit does not really and substantially involve a dispute
of which the court has cognizance, or that the parties have been
improperly or collusively made or joined for the purpose of
creating a cognizable case, the court may stop all further
proceedings and dismiss the suit.
In
Williams v. Nottawa, supra, the record showed that
one of the issues to be tried was whether Williams, the plaintiff,
was the real holder and owner of the bonds sued on, and the
evidence showing the collusion, for which we ordered the suit to be
dismissed, was all material and pertinent to that issue. And in
Farmington v. Pillsbury, cited above, one of the defenses
was that Pillsbury, the plaintiff, was not the
bona fide
holder of the coupons in suit, but that they were placed in his
hands for the purpose of being sued on in the courts of the United
States. The case came here on special findings applicable to that
issue, and what we then said was in answer to the question
certified on those findings.
Beyond this, no doubt, if, from any source, the court is led to
suspect that its jurisdiction has been imposed upon by the
collusion of the parties or in any other way, it may at once of its
own motion cause the necessary inquiry to be made, either by having
the proper issue joined and tried, or by some other appropriate
form of proceeding, and act, as justice may require, for its own
protection against fraud or imposition.
But the evidence on which the circuit court acts in dismissing
the suit must be pertinent either to the issue made by the parties,
or to the inquiry instituted by the court, and must appear of
record if either party desires to invoke the exercise of the
appellate jurisdiction of this Court for the review of the order of
dismissal.
Barry v. Edmunds, ante, 116 U. S. 550. And
when the defendant has not so pleaded as to entitle him to object
to the jurisdiction, and the objection is taken by the court of its
own motion, justice requires that the plaintiff should have an
opportunity
Page 116 U. S. 592
to be heard upon the motion, and to meet it by appropriate
evidence.
Here, the citizenship of both the plaintiff and the defendant,
as it was in good faith understood by the plaintiff to be, was
stated in the declaration, and it was such as, if truly stated,
gave the court jurisdiction. The defendant pleaded to the merits.
He alone knew of the mistake as to his citizenship, and purposely
omitted to make it known at the time. Under the issues joined the
question of citizenship did not and could not arise. If a judgment
had been rendered on the verdict, Memory would have been bound by
it, notwithstanding both he and Hartog were aliens. The record
would have estopped him from denying the jurisdiction of the court.
The testimony about his citizenship was irrelevant and wholly
immaterial. It did not in any manner relate to the merits of the
case. It apparently came out incidentally, without attracting the
attention of the court at the time. The defendant suffered it to
pass without special notice until after the verdict against him. He
then moved for a new trial, not, so far as the record discloses,
because of any errors at the trial, but, as we must presume, for
the purpose of laying the foundation for his motion to dismiss, and
the case appears to have been dismissed by the court solely upon
the defendant's motion and the irrelevant testimony given at the
trial, and without affording the plaintiff an opportunity to rebut
or control that testimony.
Under these circumstances, as there is nothing else in the case
to justify the dismissal of the suit, we are of opinion that
The order dismissing the suit is erroneous, and must be
reversed, and the cause remanded for further proceedings not
inconsistent with this opinion.
