It is a bad mode of pleading, to unite pleas in abatement and
pleas to the merits. And if after pleas in abatement a defense be
interposed going to the merits of the controversy, the grounds
alleged in abatement become thereby immaterial, and are waived.
When a plea is filed to the jurisdiction of the court upon the
ground that the plaintiff is a resident of the same state with the
defendant, it is incumbent on the defendant to prove the
allegation.
It is of to consequence whether the date of a promissory note be
at the beginning or end of it.
The facts are all set forth in the opinion of the Court.
Page 55 U. S. 508
MR. JUSTICE DANIEL delivered the opinion of the Court.
The defendant in error, in conformity with a mode of practice in
the State of Texas, instituted an action at law against the
plaintiffs in error upon their promissory note. That note was in
the words following:
"On the first day of January, 1850, we jointly and severally
promise to pay to Peyton S. Graves or order, at the counting house
of R. & D. G. Mills, in Brazoria County, the sum of $1,845.94,
for value received, with eight percent interest thereon, from the
first day of January, till paid."
"ABM. SHEPPARD"
"JOHN DUNCAN"
"Matagorda, Sept'r 23, 1844"
The petition sets forth that
"Peyton S. Graves, a citizen and inhabitant of Louisiana,
represents that Abram Sheppard and John Duncan, both citizens and
residents of the County of Matagorda in the State of Texas, are
jointly and severally indebted to the petitioner in the sum of
$1,845.94, with interest thereon, at eight percent per annum, from
the first day of January, 1844, until paid -- for that heretofore,
to-wit, at Matagorda, in the State of Texas, on the 23d day of
September, 1844, the said Sheppard, who signs his name Abm.
Sheppard, and the said Duncan, executed and delivered to the
petitioner their joint and several promissory note, dated September
23, 1844, and signed Abm. Sheppard and John Duncan, by which
&c."
Upon the summons issued against each of the defendants, the
marshal returns that he had executed the summons on the 12th of
October, 1850, serving each of them with a certified copy of the
petition and summons, and with regard to Duncan, the return farther
states that the original summons, was also exhibited to him. The
plaintiffs in error appeared to the action and attempted to
interpose several defenses in the nature of pleas in abatement.
They first allege jointly that the court could not take cognizance
of the cause, because the plaintiff below, was not, at the
commencement of the suit, a citizen of Louisiana, but of the State
of Texas.
The defendant Sheppard then pleads separately that the marshal's
return upon the summons was not legal, and should be quashed
because it does not state that the marshal had delivered to the
defendant in person a copy of the citation and of the petition
accompanying it, and that the return was not
Page 55 U. S. 509
made and signed by the deputy purporting to make and sign the
same.
The defendant Duncan also pleads separately in abatement that
the citation calls upon him to answer the complaint against him and
Abraham Sheppard, whereas the true name of said Sheppard is Abram,
and not Abraham, and he also insists upon the insufficiency of the
return to the summons, because, as he alleges, that return does not
state that the marshal delivered to him in person a copy of the
citation or of the petition accompanying it.
In addition to these pleas in abatement, the defendants below
interposed a defense upon the merits in the nature of the general
issue, by which they deny all and singular the matters stated in
the petition and say that they are not indebted to the plaintiff as
he has alleged, and in this defense they conclude to the country,
whilst in the introduction thereto, they declare that they do not
waive their several pleas in abatement, but fully rely upon the
same. After this series of heterogeneous defenses, the plaintiff
moved the court to strike out the plea to the jurisdiction and all
the other pleas in abatement tendered by the defendants, assigning,
as the grounds of this motion, that those pleas were not filed
within the time required by law.
Upon the trial of the cause, the court seems to have considered
the case as standing before it upon all the defenses attempted, but
ruled out the several pleas in abatement, though whether for the
insufficiency of those pleas in point of law for the want of proof
to sustain them or for their irregularity in the order of pleading
does not certainly appear from this record. The jury, upon the
issue joined upon the merits, rendered a verdict for the plaintiff
for the sum of $2,788.89, for which judgment was given with
costs.
The incongruities in practice, which mark the progress of this
case in the court below are much to be regretted as having a
tendency to confound the proceedings in courts of justice --
proceedings calculated to define and distinguish the rights of
parties litigant and to conduct the courts to a correct
adjudication upon those rights -- proceedings indeed founded upon
and as it were sanctified by an experience of their usefulness, and
even of their necessity. Thus it has ever been received as a cannon
of pleading that matters which appertain solely to the jurisdiction
of a court or to the disabilities of the suitor should never be
blended with questions which enter essentially into the subject
matter of the controversy, and that all defenses involving
inquiries into that subject matter imply -- nay admit -- the
competency of the parties to institute such inquiries, and the
authority of the court to adjudicate upon them. Hence it is
that
Page 55 U. S. 510
pleas to the jurisdiction or in abatement are deemed
inconsistent with those which appertain to the merits of a cause;
they are tried upon different views as to the relations of the
parties, and result in different conclusions. A striking
illustration of the mischiefs flowing from the departure from the
rule just stated is seen in the practice attempted in the case
before us. If it could be imagined that the plea to the
jurisdiction and the plea to the merits could be regularly
committed to the jury at the same time, the verdict might involve
the following absurdities.
Should the finding be for the plaintiff, the judgment would, as
to the defendant, be upon one issue, that of
respondeas
ouster, and upon the other, that he pay the debt, as to the
justice of which he was commanded to answer over. Should the
finding be for the defendant, the judgment upon one issue must be
that the debt was not due, and upon the other that the court called
upon so to pronounce had no authority over the case. So that in
either aspect there must, under this proceeding, be made and
determined one issue which is incongruous with and immaterial to
the other. A practice thus fraught with confusion and perplexity,
and one endangering the rights of suitors, it is exceedingly
desirable should be reformed, and we are aware of no standard of
reformation and improvement more safe or more convenient than that
which is supplied by the time-tested rules of the common law. And
by one of those rules, believed to be without an exception, it is
ordained that objections to the jurisdiction of the court, or to
the competency of the parties, are matters pleadable in abatement
only, and that if after such matters relied on, a defense be
interposed in bar and going to the merits of the controversy, the
grounds alleged in abatement become thereby immaterial, and are
waived.
With respect to the exception taken to the ruling of the
district court, as to the obligation of the defendant to prove his
averment of the plaintiff's residence in the State of Texas, and
not of Louisiana, as set forth in the petition, were the decision
of this question deemed requisite here, we should say that 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. Such, we think, would be the
proper rule resulting from the intrinsic character of the
exception,
Page 55 U. S. 511
and such we consider the doctrine enunciated in the cases of
Conard v. Atlantic Insurance
Company, 1 Pet. 386, and
D'Wolf v.
Rabaud, 1 Pet. 476.
This doctrine we are unwilling to disturb. The cases just
referred to, as well as those of
Sims v.
Hundley, in 6 How. 1, and
Smith v.
Kernochen, 7 How. 198, expressly affirm the common
law principle of pleading hereinbefore mentioned that the question
of the residence or of the right of the parties to sue, as incident
to residence, cannot be inquired into under the general issue.
The plea of a misnomer of the defendant Sheppard, by the
insertion of two superfluous letters in his Christian name and the
still more captious and unmeaning distinction attempted between
serving the defendants with a certified copy of the petition and
summons in this suit, and a delivery of that petition and summons
to the defendants in person, is disposed of by the same rule which
displaces as irrelevant and immaterial the exception taken to the
jurisdiction.
The question of variance between the note and the description of
it in the petition it is not easy to comprehend unless indeed it is
intended by the defendants to insist that a note should have its
date inserted at its beginning only, and cannot be dated at the
termination of it, for the note at the bottom bears upon it the
date as well as the place of its execution,
viz.,
Matagorda, September 23, 1844, and the description and the petition
accord with both these facts. It is true the petition contains a
recital that Matagorda is within the State of Texas, but by no
extreme of cavil can this recital be converted into a
misdescription of the note. Upon the whole case, we think the
judgment of the district court was correct, and we accordingly
order it to be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Texas, and was argued by counsel. On consideration whereof, it is
now here ordered and adjudged by this Court that the judgment of
the said district court in this cause be and the same is hereby
affirmed with costs and interest until the same is paid at the same
rate per annum that similar judgments bear in the courts of the
State of Texas.