Where the record shows that the only matter tried and decided in
the circuit court was a demurrer to a plea to the jurisdiction, and
the petition upon which the writ of error was allowed asked only
for the review of the judgment that the court had no jurisdiction
of the action, the question of jurisdiction alone is sufficiently
certified to this Court, as required by the Act of March 3, 1891,
c. 517, § 5.
Under the Act of March 3, 1887, c. 373, as corrected by the Act
of August 13, 1888, c. 866, a defendant who enters a general
appearance in an action between citizens of different states
thereby waives the right afterwards to object that he or another
defendant is not an inhabitant of the district in which the action
is brought.
This was an action at law brought June 9, 1890, in the Circuit
Court of the United States for the District of Indiana by the
Interior Construction and Improvement Company against John C.
Gibney and Harvey Bartley, co-partners under the name of J. C.
Gibney and Co., and James B. McElwaine and James B. Wheeler, upon a
bond, by which "J. C. Gibney and Co., as principals, and J. B.
McElwaine and J. B. Wheeler, as sureties, are holden and firmly
bound,"
Page 160 U. S. 218
jointly and severally, to the plaintiff in the sum of $20,000
for the performance of a contract made by "said J. C. Gibney &
Co." with the plaintiff.
The complaint alleged that the plaintiff was incorporated under
the laws of the State of New Jersey, and was a citizen thereof, and
that all the defendants were citizens and residents of the State of
Indiana.
On June 19, 1890, the defendants Gibney, McElwaine, and Wheeler,
by their attorney, entered a general appearance. But Gibney never
pleaded or answered, and the defendant Bartley never appeared or
made any defense.
On September 19, 1891, McElwaine and Wheeler pleaded in
abatement that at the time of the bringing of this action and ever
since, Gibney and Bartley were citizens of the State of
Pennsylvania, and not citizens or residents of the State of
Indiana, and that therefore the court had no jurisdiction of the
case.
The plaintiff demurred to this plea as not containing facts
sufficient to constitute a cause for the abatement of the action.
The plaintiff declining to plead further, but electing to stand
upon its demurrer to the plea, the court adjudged that the
plaintiff take nothing by its action, and that the defendants
recover costs.
The plaintiff thereupon presented a petition for the allowance
of a writ of error
"for the review of the judgment heretofore rendered therein in
favor of the defendants and against the plaintiff, therein holding
and deciding that this Court has no jurisdiction of said
action,"
and assigned as errors that the circuit court erred 1st. in
overruling the plaintiff's demurrer to the plea in abatement, 2d.
in sustaining the plea in abatement, and holding that the court had
no jurisdiction of the cause, 3d. in entering judgment in favor of
the defendants and against the plaintiff on the plea in abatement,
and dismissing and quashing the proceedings. The writ of error was
thereupon allowed by the judge presiding in the circuit court.
Page 160 U. S. 219
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The record shows that the only matter tried and decided in the
circuit court was a demurrer to the plea to the jurisdiction, and
the petition, upon which the writ of error was allowed, asked only
for the review of the judgment that the court had no jurisdiction
of the action. The question of jurisdiction alone is thus
sufficiently certified to this Court, as required by the Act of
March 3, 1891, c. 517, § 5. 26 Stat. 828.
In re Lehigh
Co., 156 U. S. 322;
Shields v. Coleman, 157 U. S. 168.
The Act of March 3, 1887, c. 373, as corrected by the Act of
August 13, 1888, c. 866, confers upon the circuit courts of the
United States original jurisdiction of all civil actions at common
law or in equity, between citizens of different states, in which
the matter in dispute exceeds, exclusive of interest and costs, the
sum or value of $2,000, and provides that
"where the jurisdiction is founded only on the fact that the
action is between citizens of different states, suit shall be
brought only in the district of the residence of either the
plaintiff or the defendant."
24 Stat. 552; 25 Stat. 433.
The circuit courts of the United States are thus vested with
general jurisdiction of civil actions, involving the requisite
pecuniary value, between citizens of different states. Diversity of
citizenship is a condition of jurisdiction, and when that does no
appear upon the record, the court, of its own motion, will order
the action to be dismissed. But the provision as to the particular
district in which the action shall be brought does not touch the
general jurisdiction of the court over such a cause between such
parties, but affects only the proceedings taken to bring the
defendant within such jurisdiction, and is a matter of personal
privilege which the defendant may insist upon or may waive at his
election, and the defendant's right to object that an action within
the general jurisdiction of the court is brought in the wrong
district is waived
Page 160 U. S. 220
by entering a general appearance without taking the objection.
Gracie v.
Palmer, 8 Wheat. 699;
Toland v.
Sprague, 12 Pet. 300,
37 U. S. 330;
Ex Parte Schollenberger, 96 U. S. 369,
96 U. S. 378;
San Francisco Railway v. McBride, 141 U.
S. 127;
Southern Pacific Co. v. Denton,
146 U. S. 202,
146 U. S. 206;
Texas & Pacific Railway v. Saunders, 151 U.
S. 105;
Central Trust Co. v. McGeorge,
151 U. S. 129;
Southern Express Co. v. Todd, 56 F. 104.
In
Smith v. Lyon, 133 U. S. 315,
this Court held that the provision of the act of 1888, as to the
district in which a suit between citizens of different states
should be brought, required such a suit, in which there was more
than one plaintiff or more than one defendant, to be brought in the
district in which all the plaintiffs or all the defendants were
inhabitants.
When there are several defendants, some of whom are and some of
whom are not inhabitants of the district in which the suit is
brought, the question whether those defendants who are inhabitants
of the district may take the objection if the nonresident
defendants have not appeared in the suit has never been decided by
this Court. Strong reasons might be given for holding that,
especially where, as in this case, an action is brought against the
principals and sureties on a bond, and one of the principals is a
nonresident and does not appear, the defendants who do come in may
object at the proper stage of the proceedings, to being compelled
to answer the suit.
But in the present case it is unnecessary to decide that
question, because one of the principals and both sureties, being
all the defendants who pleaded to the jurisdiction, had entered a
general appearance long before they took the objection that the
sureties were citizens of another district. Defendants who have
appeared generally in the action cannot even object that they were
themselves inhabitants of another district, and, of course, cannot
object that others of the defendants were such.
Judgment reversed, and case remanded, with directions to
sustain the demurrer to the plea, and for further proceedings not
inconsistent with this opinion.
