Under Rev.Stat. § 914, and according to the Code of Civil
Procedure of the State of Nebraska, if the petition in an action at
law in the circuit court of the United States held within that
state alleges the requisite citizenship of the parties, and the
answer denies each and every allegation in the petition, such
citizenship is put in issue, and, if no proof or finding thereof
appears of record, the judgment must be reversed for want of
jurisdiction.
In this action, brought June 11, 1887, by Lewis against Roberts
in the Circuit Court of the United States for the District of
Nebraska, the petition was as follows:
"Comes now the said plaintiff, and shows and represents unto
this honorable court that he is a resident of the City of
Milwaukee, in the State of Wisconsin, and a citizen of the said
State of Wisconsin, and that the defendant is a resident of the
Page 144 U. S. 654
City of Lincoln, in the State of Nebraska, and a citizen of the
said State of Nebraska, and that the matters and things herein in
controversy exceed the sum and value of two thousand dollars,
exclusive of interest and costs."
"2d. The plaintiff further complains of the defendant for that
plaintiff has a legal estate in and is entitled to the immediate
possession of the following described property, to-wit, lots number
one, two, three, four, five, and six, all in block number
forty-one, in Dawson's addition to South Lincoln, in Lancaster
County, Nebraska, and that said defendant has, ever since the 11th
day of April, 1887, unlawfully kept, and still keeps, the plaintiff
out of possession thereof."
"Wherefore the plaintiff prays that he may have judgment for the
delivery of the possession of said premises to him, and for the
costs of this action."
The defendant filed the following amended answer:
"1. The above-named defendant, for an amended answer to the
plaintiff's petition, says that for more than ten years prior to
the commencement of this action he had been, and still is, in the
open, adverse possession of the premises in controversy."
"2. Defendant, further answering, denies each and every
allegation in said petition contained."
The parties stipulated in writing that the value of the premises
in controversy exceeded $5,000, and the case was tried by a jury,
who, by direction of the court, returned a special verdict, finding
the following facts:
Jacob Dawson died seised in fee of the premises, leaving a widow
and five children, and by his last will, dated May 10, 1869, and
duly admitted to probate in Lancaster County, Nebraska, made the
following devise and bequest:
"To my beloved wife, Editha J. Dawson, I give and bequeath all
my estate, real and personal, of which I may die seised, the same
to be and remain hers, with full power, rights, and authority to
dispose of the same as to her shall seem meet and proper, so long
as she shall remain my widow, upon the express condition, however,
that, if she should marry again, then it is my will that all of the
estate herein bequeathed, or whatever may remain, shall go to my
surviving children, share and share
Page 144 U. S. 655
alike."
On December 14, 1879, Editha J. Dawson married Henry M.
Pickering. The premises were conveyed on March 15, 1870, by
warranty deed, by Editha J. Dawson to one England, and by him on
December 15, 1871, to the defendant, who has ever since been in the
peaceful occupation and control of the same. The premises were
conveyed on September 15, 1879, by warranty deed, by Jacob Dawson's
children to Wheeler and Burr by them, on April 27, 1880, to Ezekiel
Giles, and by him, in May, 1887, to the plaintiff.
The jury found that if the court should be of opinion that under
the will Editha J. Dawson took only an estate determinable upon her
marriage, then the plaintiff at the commencement of the action, was
seised in fee of the premises, and entitled to the immediate
possession thereof, and should recover of the defendant nominal
damages, but if the court should be of opinion that under the will,
Editha J. Dawson took an estate absolutely in fee, then they found
for the defendant.
The circuit court gave judgment for the plaintiff upon the
special verdict, and the defendant sued out this writ of error.
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
The principal question argued in this case is upon the true
construction of the devise of Jacob Dawson to his wife, in view of
the conflicting decisions of this Court and of the Supreme
Page 144 U. S. 656
Court of Nebraska.
Giles v. Little, 104 U.
S. 291;
Little v. Giles, 25 Neb. 313.
See
also Little v. Giles, 118 U. S. 596;
Giles v. Little, 134 U. S. 645.
But a preliminary question to be decided is whether the circuit
court of the United States appears upon this record to have had any
jurisdiction of the case.
The petition or declaration alleges in due form that the
plaintiff is a citizen of the State of Wisconsin and the defendant
is a citizen of the State of Nebraska, and further alleges that the
plaintiff has a legal estate in, and is entitled to the immediate
possession of, certain lots in Lancaster County, in the State of
Nebraska, and the defendant has kept, and still keeps, the
plaintiff out of possession thereof; wherefore the plaintiff prays
for judgment for delivery of possession of the premises to him. The
answer sets up two defenses: (1) open and adverse possession of the
premises by the defendant for 10 years; (2) a general denial of
each and every allegation in the petition. The special verdict
finds facts bearing on the merits of the case, but nothing as to
the citizenship of the parties.
Whenever the jurisdiction of the circuit court of the United
States depends upon the citizenship of the parties, it has been
held from the beginning that the requisite citizenship should be
alleged by the plaintiff and must appear of record, and that when
it does not so appear, this Court, on writ of error, must reverse
the judgment for want of jurisdiction in the circuit court.
Brown v.
Keene, 8 Pet. 112;
Continental Ins. Co. v.
Rhoads, 119 U. S. 237.
Doubtless so long as the rules of pleading in the courts of the
United States remained as at common law, the requisite citizenship
of the parties, if duly alleged or apparent in the declaration,
could not be denied by the defendant except by plea in abatement,
and was admitted by pleading to the merits of the action.
Sheppard v.
Graves, 14 How. 505.
But since 1872, when Congress assimilated the rules of pleading,
practice, and forms and modes of procedure in actions at law in the
courts of the United States to those prevailing in the courts of
the several states, all defenses are
Page 144 U. S. 657
open to a defendant in the circuit court of the United States,
under any form of plea, answer, or demurrer, which would have been
open to him under like pleading in the courts of the state within
which the circuit court is held. Act June 1, 1872, c. 255, §
5, 17 Stat. 197; Rev.Stat. § 914;
Chemung Canal Bank v.
Lowery, 93 U. S. 72;
Glenn v. Sumner, 132 U. S. 152;
Central Transportation Co. v. Pullman's Car Co.,
139 U. S. 24,
139 U. S.
39-40.
By the Nebraska Code of Civil Procedure, § 62, every civil
action is commenced by petition, and by § 92 the petition must
contain
"the name of the court and county in which the action is
brought, and the names of the parties plaintiff and defendant, . .
. a statement of the facts constituting the cause of action,"
and "a demand of the relief to which the party supposes himself
entitled." By § 94, the defendant may demur to the petition
for certain matters appearing on its face, among which are "that
the court has no jurisdiction of the person of the defendant, or
the subject of the action" and "that the petition does not state
facts sufficient to constitute a cause of action," and by §
95, the demurrer must specify the grounds of objection, or else be
regarded as limited to the latter ground only. By § 96, "when
any of the defects enumerated in § 94 do not appear upon the
face of the petition, the objection may be taken by answer," and in
every case, by § 99, the answer must contain "a general or
specific denial of each material allegation of the petition
controverted by the defendant," and "a statement of any new matter
constituting a defense."
Under this code, as under the Code of New York, upon which it
was modeled, the answer takes the place of all pleas at common law,
whether general or special, in abatement or to the merits, and a
positive denial in the answer of "each and every allegation in the
petition" puts in issue every material allegation therein, as fully
as if it had been specifically and separately denied.
Sweet v.
Tuttle, 14 N.Y. 465;
Gardner v. Clark, 21 N.Y. 399;
Donovan v. Fowler, 17 Neb. 247;
Hassett v.
Curtis, 20 Neb. 162; Maxewell's Practice (4th ed.) 127, 128;
Bliss on Code Pleading (2d ed.) § 345.
Page 144 U. S. 658
And by the express terms of §§ 94, 96, above cited, an
objection that the court has no jurisdiction either of the person
of the defendant or of the subject of the action may be taken by
demurrer if it appears on the face of the petition, and by answer
if it does not so appear.
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 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 to that court, which may, in
its discretion, either dismiss the action for want of jurisdiction
or set aside the verdict and permit the plaintiff to offer evidence
of the citizenship of the parties.
Continental Ins. Co. v.
Rhoads, 119 U. S. 237.
Judgment reversed and case remanded to the Circuit Court for
further proceedings in accordance with the opinion of this
Court.
