Whether a subsequent decision between the same parties upon the
same cause of action makes the questions involved in the earlier
decision moot involves the defense of the thing adjudged going to
the merits, and cannot be considered on a direct appeal under §
238, Jud.Code, on which this Court can only consider the question
of the jurisdiction of the court below.
So far as controversies in a case brought in the federal court
depend alone upon the right to sue because of the district in which
the parties reside, they are personal, and susceptible of being
waived, and are not intrinsically and necessarily federal; but if
they involve federal privileges not waived, they are federal
questions susceptible of being brought to this Court by direct
appeal under § 238, Jud.Code.
The asserted right to a judgment on bonds of a corporation
created by act of Congress involves an inherently federal
A corporation is entitled to be sued in the district of its
residence, and, without the consent of such corporation, the
District Court of the United States for another district has no
jurisdiction of an action involving an inherently federal
The facts, which involve the jurisdiction of this Court under §
238, Jud.Code, and of the district court under § 51, Jud.Code, are
stated in the opinion.
Page 240 U. S. 98
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
On this direct appeal, a reversal is sought of a decree below
which dismissed the bill for want of jurisdiction. There is a
motion to dismiss on the ground that
the questions involved upon this appeal are moot questions
Page 240 U. S. 99
. . . for the reason that, subsequent to the dismissal of the
bill herein by the lower court, the appellant, as plaintiff,
instituted in the Supreme Court of the State of New York, County of
New York, an action upon the same alleged cause of action against
the same defendants, and that such action in the Supreme Court of
the State on New York was heard and determined, and that a final
judgment upon the merits therein was rendered, dismissing the
complaint filed in said action as against this appellee.
But, as our power to review is limited to the question of
jurisdiction alone, and as the ground of the motion obviously
involves the defense of "the thing adjudged," going to the merits,
the motion to dismiss is overruled, and we come to consider the
question of the jurisdiction of the court below -- that is,
whether, as a federal court, it had power to entertain the cause.
Louisville Trust Co. v. Knott, 191
U. S. 233
; Fore River Shipbuilding Co. v. Hagg,
219 U. S. 175
Farrugia v. Phila. & Read. Ry., 233 U.
The bill alleged that the complainant, Male, who sued as the
trustee of Gilbert W. Chapin, was a citizen of the State of New
York and an inhabitant and resident of the Southern District
thereof. The defendants were the Atlantic & Pacific Railroad
Company, a corporation created by an act of Congress, the Atchison,
Topeka, & Santa Fe Railroad Company, a corporation organized
under an act of the Legislature of the Territory of Kansas, the
Atchison, Topeka, & Santa Fe Railway Company, a corporation
organized under the laws of the State of Kansas, and the Boston
Safe Deposit & Trust Company, a corporation organized under the
laws of the State of Massachusetts. We do not stop to summarize the
averments of the bill in order to make clear the nature of the
relief sought, because we accept as adequate for the purpose of the
question before us the statement made on that subject in the
printed argument filed on behalf of
Page 240 U. S. 100
the appellant as follows:
"The relief prayed for is judgment for $120,000 and interest
upon certain income bonds issued by the Atlantic & Pacific
Railroad Company on the 1st day of October, 1880, and maturing
October 1st, 1910, and for an adjudication that the Atchison,
Topeka, & Santa Fe Railway Company (the present appellee) is
liable in equity for the amount of such judgment by reason of the
matters set forth in the bill of complaint."
As further stated in the argument for the appellant, the bill
alleged that the Atlantic & Pacific Railroad Company "is
practically out of existence, and has not been nor can it be,
served with process," and that the Atchison, Topeka, & Santa Fe
Railroad Company and the Boston Safe Deposit & Trust Company
were not served with process, and are not deemed to be necessary
parties to the cause, and may be put out of view. The Atchison,
Topeka, & Santa Fe Railway Company, the only other defendant
(the appellee), was served through one of its officers in the City
of New York. It thereupon appeared specially and
"for the single and sole purpose of making a motion to set aside
the service of the subpoena and dismiss the bill of complaint as to
it for want of jurisdiction over the person of said defendant."
And subsequently it moved to dismiss on two grounds: 1. that, as
its residence was in Kansas, it could not be sued outside of the
district of which it was a resident without its consent, and that
as Male, the complainant, was only colorably joined as a
complainant, the real party being Chapin, for whom Male assumed to
act as trustee, and who was a citizen and resident of Connecticut,
there was no jurisdiction over the cause, as the suit was brought
in the district of the residence of neither of the real parties,
and 2, that, as the complainant sought to enforce a liability on
the bonds of the Atlantic & Pacific Railroad Company, a
corporation created by an act of Congress, involving an inherently
federal question, there was no jurisdiction in the Court over
Page 240 U. S. 101
defendant, because, under such circumstances, it was entitled to
be sued in the court of the district of its residence, and could
not without its consent be impleaded in the district of the
residence of the plaintiff, even if Male was treated as the real
plaintiff, and entitled otherwise to sue in the Southern District
of New York. As stated in the certificate of the court below, the
judgment of dismissal for want of jurisdiction was based upon both
of the grounds -- that is, the want of authority to sue in the
Southern District of New York because that was the district of the
residence of neither of the parties, and because, owing to the
federal question, the defendant was entitled to be sued in the
district of its residence.
It is not disputable that, insofar as the contentions as to
jurisdiction depended alone upon the right to sue because of the
district in which the parties resided, they did not present
questions of inherent federal jurisdiction. We say this because
controversies as to such subjects concern a personal privilege
susceptible of being waived, which would not be the case if they
involved contentions which were intrinsically and necessarily
federal. St. Louis &c. Ry. v. McBride, 141 U.
; Ex Parte Wisner, 203 U.
; In re Moore, 209 U.
; Western Loan Co. v. Butte & Boston
Mining Co., 210 U. S. 368
while this is the case, it is yet also true that questions of
jurisdiction depending upon controversies as to the district of
residence, where the statutory rights in that regard have not been
waived, when decided below, are questions of federal jurisdiction,
susceptible of being brought here by direct appeal under the
provisions of § 238 of the Judicial Code. Davidson Bros. Marble
Co. v. United States, 213 U. S. 10
United States v. Congress Construction Co., 222 U.
Our power to review thus being settled, the only question is,
did the court err in holding that, as a federal court within the
meaning of the statute, it had no authority under the circumstances
to entertain the cause? In
Page 240 U. S. 102
solving this issue, without expressing any opinion as to the
want of jurisdiction based upon the contention that Male, the
complainant, had no real, but only a colorable and fictitious,
interest, and hence that the suit was brought neither in the
district of the residence of the complainant nor that of the
defendant, and confining our attention to the ruling that there was
a want of power to entertain the cause in any other than the
district of the residence of the defendant, because of the
inherently federal question presented, we think that the refusal to
take jurisdiction was clearly right, and should be affirmed.
Undoubtedly the asserted right to a judgment on the bonds of the
Atlantic & Pacific Railroad Company, a corporation created by
an act of Congress, involved an inherently federal question.
Osborn v. Bank of United
9 Wheat. 738; Washington & Idaho R.
Co. v. Coeur d'Alene Ry., 160 U. S. 77
In re Dunn, 212 U. S. 374
Tex. & Pac. Ry. v. Hill, 237 U.
. This being true, it is also indisputable that
the defendant was entitled to be sued in the district of its
residence, and was not, without its consent, liable to be sued
within the district of the residence of the complainant. Macon
Grocery Co. v. Atlantic Coast Line, 215 U.
; Judicial Code, §51.
As it follows that no error was committed by the court below in
holding that it was without power to exercise jurisdiction of the
cause, its decree must be and it is