(dissenting). I am unable to concur in the foregoing opinion, and feel it my duty to point out wherein I think it has departed from decisions of the Supreme Court and from what 1 have deemed to be the settled doctrine in this circuit. Reduced to brief terms, the opinion denies the authority of Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579; holds that an averment of diverse citizenship in a complaint, though denied in the answer, makes a prima facie case, in favor of jurisdiction of a Circuit Court of the United States, and casts upon the defendant the burden of sustaining his denial by proof to a legal certainty, although the state procedure, adopted by the conformity act of 1873, is otherwise; and applies the rule of Norris v. Jackson, 76 U. S. 125, 19 L. Ed. 608, to a case involving the existence of facts upon which the jurisdiction of a Circuit Court of the United States depends. In other words, it is held that when the trial is by the court without a jury, and there is a general finding and judgment for plaintiff, an appellate court, cannot, in the absence of special findings or requests therefor or for declarations of law, look into the bill of exceptions to examine the evidence on an issue made by the pleadings as to diversity of citizenship upon which jurisdiction depends.
The opinion of the Supreme Court in Roberts v. Lewis is plain and concise. There is no doubt about what was held. It was averred in the petition in an action in ejectment in the Circuit Court for the District of Nebraska that plaintiff was a citizen of Wisconsin and defendant a citizen of Nebraska. The answer contained a specific defense to the merits, and also a general deniál. The jury returned a special verdict covering the merits, but made no finding as to the. citizenship of the parties. Under the Nebraska Code of Civil Procedure a general 'denial in an answer puts in issue averments of jurisdictional facts in a petition. On this the Supreme Court held that, as long as rules-of pleading in courts of the United States remained as at common law, the requisite citizenship of the parties, if duly alleged in the petition, could only he denied by a plea in abatement and was admitted by pleading to the merits, but that since the conformity act all defenses are open to a defendant in a Circuit Court of the United States under any form of pleading that would he available under a like pleading in the courts of the state in which the Circuit Court is held. Mr. Justice Gray, who spoke for the court, said:
“The necessary consequence is that the allegation of the citizenship of tlio parties, being a material allegation properly made in the petition, was put in issue by the answer, and, lilte other affirmative and ma terial allegations made *262by 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,” etc.
I can find no indication that the Supreme Court has ceased to regard this case with approval. On the contrary, it was cited and the above doctrine again announced as late as Wells Company v. Mfg. Co., 198 U. S. 177, 182, 25 Sup. Ct. 640, 49 L. Ed. 1003. It was-also cited in Southern Pacific v. Denton, 146 U. S. 202, 209, 13 Sup. Ct. 44, 36 L. Ed. 942, Mexican Central v. Pinkney, 149 U. S. 194, 206, 13 Sup. Ct. 859, 37 L. Ed. 699, and Mattingly v Railroad, 158 U. S. 53, 57, 15 Sup. Ct. 725, 39 L. Ed. 894. Moreover, this court has twice followed and applied it in cases which arose, as the case now before us did, in Missouri, and involved the practice act of that state. Yocum v. Parker, 66 C. C. A. 80, 130 Fed. 770; Cole v. Carson, 82 C. C. A. 408, 153 Fed. 278. Roberts v. Lewis was also followed by the Court of Appeals of the Sixth Circuit in a case where it became necessary to apply the Kentucky Code—Roberts v. Langenbach, 56 C. C. A. 253, 119 Fed. 349; and again by the same court in Toledo Traction Co. v. Cameron, 69 C. C. A. 28, 137 Fed. 48, where the Ohio Code was applied. '
Does an averment of diverse citizenship in a complaint in an action at law make a prima facie case in favor of jurisdiction, though it is properly denied in defendant’s pleading according to the provisions of the local procedure? Does it cast upon defendant, who has duly taken issue upon it, the burden of disproving it to a legal certainty? We must bear in mind that in Missouri, where the case at bar arose, there is a modern Code of Civil Procedure under which a general denial in an answer puts in issue averments of jurisdictional facts in the complaint. An affirmative answer to the above questions would seem to violate all settled rules of code pleading and practice. It would certainly not accord with those prevailing in this circuit. In Roberts v. Lewis, supra, the court said that plaintiff’s averment of citizenship, denied by defendant in his answer, “must be proved bjr the plaintiff.” In Wells Company v. Mfg. Co., 198 U. S. 177, 182, 25 Sup. Ct. 640, 49 L. Ed. 1003, the plaintiff, to invoke the jurisdiction of the Circuit Court, - averred, among other things, that it was a corporation of Mississippi. The defendant denied the averment upon information and belief. . The Supreme Court, speaking by Mr. Justice Harlan, held the denial sufficient to raise the issue, and said that:
“As the jurisdiction of the courts of the United States must always appear affirmatively, of record, it became necessary, under existing statutes and under the rules of practice and pleading in North Carolina (where the action was brought), for the plaintiff to prove that it was a corporation of Mississippi.”
In Cole v. Carson, supra, the unanimous view of the three Circuit Judges of this circuit who sat in the case was that, following the conformity "act and the Missouri Code of Civil Procedure, a general denial put in issue an averment of. diverse citizenship in the petition, and *263as “no proof was produced tending to establish tlie affirmative of the issue so tendered/’ the jurisdiction of the Circuit Court had not been shown. A similar conclusion was reached by us in Yocum v. Parker, supra.
Various reasons are assigned for disregarding these decisions:
(1) The policy of the law permitting the commingling in an answer of an issue upon a jurisdictional fact with issues upon the merits is doubted. As to this I will oidy say that since the conformity act the practice, where it accords with that of the state, is upheld without question by what I think is an unvarying line of decisions of the federal courts; and, further, that it is a feature of practically every modern reformed code of civil procedure.
(2) Sheppard v. Graves, 14 How. 505, 14 L. Ed. 518. As much reliance is placed on this case, which arose before the passage of the conformity act, it is well to observe closely what was decided. Defendants interposed a plea in abatement, attacking an averment of plaintiff’s citizenship and therefore the jurisdiction of the trial court. They also filed an answer containing a general denial and a declaration that they did not waive their plea. The trial court struck out the plea, and ruled that plaintiff was not required to prove his averment of citizenship. The Supreme Court affirmed the action of the court below, and held: First, that a general denial made no issue on a jurisdictional fact, and that the practice was governed by the “time-tested rules of the common law.” “Again,” the court said, “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 controversy, the grounds alleged in abatement become thereby immaterial, and are waived.” So the plea to tlie jurisdiction was held to have been waived by the answer to the merits and to have been properly stricken out. And, second, that when jurisdiction is averred in plaintiff’s pleading it must he taken prima facie as existing-, and, if defendant would impeach it for causes dehors the pleading, the burden is on him both to allege and prove such causes. Now it is said that the first doctrine is done away with (by the conformity act and the state codes where they exist), but that the second still obtains. I think, however, it is altogether clear from a reading of the opinion of the Supreme Court that the second was considered as following from and depending -upon the first. This would naturally be so, for at common law a plea to the jurisdiction founded on facts outside the record did not prove itself or disprove averments in the petition; the burden of proof was on him who interposed the plea. Moreover, in that case the plea had been stricken out as having been waived, and as the court said that the general denial in the answer did not, under the common law, put in issue plaintiff’s averment of his citizenship, the case stood solely upon that averment, and it was necessarily held to be prima facie true. This case does not seem to me to afford a substantial basis for holding that, upon an issue of fact as to the citizenship of a party properly raised by answer *264in accordance with the conformity act and the state practice, plaintiff’s averment remains prima facie true, and the burden of proving it to a legal certainty is on defendant.
(3) Again, reliance is placed on an observation in Steigleder v. McQuesten, 198 U. S. 141, 25 Sup. Ct. 616, 49 L. Ed. 986, that “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.” But this was said with reference to the particular condition of the pleadings in the case, and not with reference to the proof upon an issue. It was averred in the bill in that case that plaintiff was a citizen of the state of Massachusetts, and defendants were citizens of the state of Washington. There was no denial of this averment by the answer. After the proofs were taken, defendants moved the trial court to dismiss the cause for want of jurisdiction, because all the parties, plaintiff and defendants, were “residents” of the same state — Washington. The Supreme Court held first, that residence and citizenship were wholly differeht things, and therefore the motion raised no question of jurisdiction; second, but as the trial court treated the question as raised it would do likewise, and then it concluded from an examination of the evidence that plaintiff was actually a citizen of Massachusetts and was but temporarily residing in Washington. In determining these facts from the evidence, plaintiff’s averment of citizenship was not referred to as having any probative effect. Mr. Justice Harlan delivered the opinion in the case, and later during the same term he delivered the opinion in Wells Company v. Mfg. Co., supra, in which it was held that a denial in an answer of plaintiff’s averment of corporate citizenship put the burden on plaintiff of proving it.' It is quite manifest that the observation quoted from the first opinion was not intended to put the burden of proof on a defendant who in an action at law took issue in a proper way. I may observe in passing, however, that Steigleder v. McQuesten was a suit in equity, and it may be questioned whether the conformity act requires an adjustment of equity practice in courts of the United States to that of the states, though this matter was not adverted to by the Supreme Court.
(4) Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. 621, 29 L. Ed. 725. The point of decision in this case was overruled in Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, 32 L. Ed. 690, and little was left of the case, but certain expressions in the opinion are relied on here. It appears from the statement of facts in that case that the answer contained a general denial and other defenses to the merits. The Supreme Court, in approaching the matter for decision, assumed that plaintiff’s averment of citizenship was not put in issue because there was no plea in abatement. The reason for this assumption becomes apparent when it is noted that the case arose in Illinois, where common-law rules prevailed under which such a plea was the only method of tendering the issue, and a general denial or other d ense .on the merits amounted to a waiver of objections to the jurisdiction. It should not be inferred that the conformity act abrogated for courts of the United States the common-law procedure of a state. It merely *265adopted for the Circuit and District Courts the practice and pleadings, “as near as may be,” of the states in which such courts were respectively held, whether the same were according to the common law or otherwise prescribed by code. So those cases in which it appears that a general denial was set up in answer are not important here, unless they arose after the conformity act, and unless we are given to know what the state procedure was. Adams v. Shirk, 55 C. C. A. 25, 117 Fed. 801, also arose in Illinois. There the jurisdictional issue was raised by plea in abatement, and the court held that for casting the burden of proof on the plaintiff it was no more effectual than a motion or a suggestion to the court. That was so at common law.
(5) Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729; Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682; Hunt v. Cotton Exchange, 205 U. S. 322, 27 Sup. Ct. 529, 51 L. Ed. 821. In these cases, and there are many like them, the question was not as to the citizenship of the parties, but whether the requisite sum or value was in controversy; and the rule is that the absence of that ground of jurisdiction must be shown to a legal certainty. It is clear, I think, that this rule is due to the peculiar character of the question involved, and it should not be confounded with that relating to citizenship, nor the limitations appropriate to one be imported into the other. It doubtless grew out of the fact that in most cages in which the existence of a dispute over a jurisdictional sum is questioned the claim of a plaintiff as set forth in his complaint is in itself one of the elements of the controversy and performs an evidential office. When it is disputed by defendant it furnishes proof of the existence of a controversy over the shm demanded. And there is obvious reason for saying that the claim of a plaintiff, not clearly fictitious on its face, but which may possibly have legal foundation, makes a case for jurisdiction until it is overthrown by proof to a legal certainty, for as long as there is any doubt or uncertainty a dispute naturally remains to be determined upon a trial of the merits. The very lack of legal certainty to the contrary shows the continued existence of controversy. In many other cases involving property or property rights there is no fixed measure of value, but it rests largely in estimate or opinion, and is difficult of accurate ascertainment. These considerations, however, do not apply to questions as to the citizenship of the parties, and hence the logic of the different rule. The one stands upon the mere existence of controversy, not how the controversy shall finally be resolved, while the other stands upon the fact of diverse citizenship, to be definitely determined when questioned.
May an appellate court look into the bill of exceptions -in a case like this and examine the evidence bearing on an issue upon a jurisdictional fact, or does the failure of the trial court to make a special finding on the issue and of counsel to make requests result in sealing up that part of the record? The fifth section of the judiciary act of March 3, 1875, imposes the duty of directing a dismissal if the cause does not really and substantially involve a controversy properly within the jurisdiction of the Circuit Court. That'duty is to be exercised “at any time,” and, so far as it rests upon an appellate court, it cannot be effected by wliat the Circuit Court or the «parties did or re-*266framed from doing at the trial. The appellate court may and should search the entire record before it, and it is perfectly proper for counsel to direct attention in any orderly way to the supposed want of jurisdiction, though they may not have done so below. In examining the record, the court may read the evidence upon a jurisdictional issue and weigh it and decide upon its sufficiency. It is not necessary to refer to the very many cases in which the performance of this duty is held to be imperative. , Nothing is better settled in federal practice. Now suppose a defendant, having joined issue in a trial court upon an averment of diverse citizenship, contends, as here, that the plaintiff failed to prove it; should the appellate court refuse to examine the evidence because defendant had not preserved his right to require it to do so, though the statute imposes the duty of examination, especially when, attention is directed to a supposed want of jurisdiction? If so, there would seem to be a distinction without much practical value. When a court is searching a record to see if the cause “really and substantially” involves a controversy which gives jurisdiction, there is little reason for refusing to determine whether a jurisdictional issue raised by a defendant was properly decided. It may be that it takes a clearer case of want of jurisdiction, to justify a dismissal under the act of 1875 than when a defendant merely asserts there was not sufficient evidence to determine his issue against him; but even so, the more reasonable doctrine is that such questions, however they arise, are so fundamentally important they should not be classed with those relating to the merits in which the litigants alone are interested, and the power of an appellate court to examine them should not be held to depend upon the making of special findings or the proffering of requests in the court below.
The result of the evidence in this case is debatable, and I shall not further refer to it than to say that, as an averment of residence is universally held not one of citizenship, mere proof of residence without more is not proof of citizenship.