"The Supreme Court and this court have held that strict conformity to the practice and proceedings in the state courts is impracticable, and that this section does not require the courts of the United 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 has also clearly intimated that jurisdictional questions may be raised by plea. Section 1011 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 a 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

strued by the Supreme Court, the question here raised relates to the burden of proof rather than the form of pleading. Section 5 reads as follows:

"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," 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 choses 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

Williams v. Nottawa,

greatly aggravated by section 1 of that act. 104 U. S. 209, 26 L. Ed. 719. Its object was to release the federal courts from the rule of the common law by which all objections to jurisdiction were waived by pleading to the merits, and to enable those courts to protect themselves at all times against frauds upon their jurisdiction. It does not deal with the subject of pleading in any way, save only to provide that want of jurisdiction shall be considered "at any time." The Supreme Court in applying the act has held that the question may now be brought forward in any manner either by plea, answer, or motion; but however presented, a dismissal of the cause is not authorized until it is made to appear to the satisfaction of the court by some affirmative showing in support of the pleading, whatever its form, "that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court." The statute covers the entire field of dismissals for defects of jurisdiction arising upon the evidence, and not only declares the duty of federal courts upon that subject, but also prescribes the showing necessary to the exercise of the power which it grants. It requires proof which shall satisfy the court that the suit does not "really and substantially" come within its jurisdiction. The general denial has no place within its language which calls for affirmative proof and hence affirmative pleading. It was never intended to absolve counsel, when challenging the jurisdiction of the court, from the duty of framing their pleading, or other form of attack, so as to present the question clearly and directly as a subject of actual controversy. The right to hear the objection at any time, or in any manner, is for the protection of the court. It does not authorize a covert form of raising the issue without actually litigating it at the trial, but for the purpose of holding it in reserve as a possible basis of error in case of an unsatisfactory judgment. Such a procedure, instead of defeating fraud, would encourage it. While the court may seize upon any form of pleading for the purpose of protecting itself against frauds upon its jurisdiction, still counsel ought not to be permitted to use a mere form of pleading as a means of presenting this question for the first time in an appellate court without any actual contest of the jurisdiction in the court below. Such a practice leaves the existence or nonexistence of jurisdiction to be determined by a process of speculative inference from the pleadings, without disclosing the actual facts upon which jurisdiction depends. The present case is an impressive illustration of the results of such a practice. Here there is no proof of facts showing a want of jurisdiction, but simply a general denial combined with an informality in the evidence. Such is not the plan of the statute. It requires the production of evidence which shall bring the real facts to light. It is à grievous hardship for litigants to be led over the long course of federal justice in the belief that they are having their rights adjudicated, only to learn at the end that the entire proceeding is a nullity. Such a result should be strictly confined to the necessity which affords its only justification. Owing to the limited jurisdiction of the federal courts, such hardship cannot be avoided when the facts essential

to jurisdiction have not been brought upon the record; but when jurisdiction has once been established by proper averments in the complaint, it should remain until proof has been produced upon an actual trial of the issue that the cause is one which, in the language of the statute, "does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court." Such a practice is within the fair intent of the act, and has received the approval of the federal courts.

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 be 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 same 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.

The fact, however, that the proper averment of the citizenship of the parties in the complaint creates a prima facie case in favor of jurisdiction becomes more manifest when we consider the second proposition, namely, that the prima facie case thus made remains until it is overcome by evidence which satisfies the mind "to a legal certainty" that jurisdiction does not in fact exist. This second proposition was also first clearly announced in Sheppard v. Graves, 14 How. 505, 14 L. Ed. 518. It was again stated in the case of Barry v. Edmunds, 116 U. S. 550-559, 6 Sup. Ct. 501, 506, 29 L. Ed. 729, where it is said, when the complaint contains proper jurisdictional allegations, the Circuit Court is not justified in dismissing a cause for want of jurisdiction—

"unless the facts, when made distinctly to appear on the record, create a lezal 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 C. 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 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 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