(dissenting). The defendant in error has judgment for $19,081.04 assessed by a jury pursuant to an order entered April 13, 1918, vacating an order of May 4, 1917, which latter order was granted upon motion of the plaintiff in error reinstating the answer which it had previously filed. This answer the plaintiff in error had withdrawn upon its own motion.
The action was commenced on April 14, 1915, and after several dilatory pleas a trial was had on May 22, 1916, when the jury disagreed. The various pleas interposed by the plaintiff in error were as follows:
Its first plea was served as a plea to the jurisdiction on June 15, 1915, which was returned by the defendant in error because it was not served within 20 days after the service of the summons and complaint. This plea was alleged to be an “invasion of the defendant’s rights under the Constitution of the United States, particularly section 1 of the Fourteenth Amendment to the Constitution,” in compelling the plaintiff in error to respond in suit. This plea was finally considered and overruled.
The plaintiff in error then filed its answer, a plea to the merits, and a trial was had as aforesaid. At this trial, the defendant in error testified that her husband was a citizen; that his naturalization papers were in their home in Pennsylvania. The plaintiff in error, suspicious of the truth of this statement, had its investigators make inquiry at Pottsville, Pa., to find the truth or falsity of this claim. Through mistake, or ignorance, or willful conduct, it was said to have been reported to counsel for the plaintiff in error that the intestate was not a citizen. The plaintiff in error then moved to withdraw its general appearance and filed a plea in abatement of the jurisdiction of the court, on the ground that the intestate, being an alien, could sue inhabitants of Pennsylvania only in the District Court of the United States in the district in which he resided, namely, the Eastern district of Pennsylvania. Upon the trial of this issue, it was shown that the intestate was a naturalized citizen, and had been one since June, 1902. The public records in Pottsville indicated this.
Thereafter, and on May 4th, on motion of the plaintiff in error, the answer was reinstated and the cause placed on the calendar for trial. The case was reached for trial on January 7, 1918. On the call of the calendar, defendant in error moved for judgment against the plaintiff in *539'error upon the record including the former motions, and asking for a jury to assess the damages. The plaintiff in error moved to dismiss the complaint. The court disposed of this application by stating that, if the defendant in error was not ready or unable to go on with the trial, the plaintiff in error was entitled to a dismissal for lack of prosecution, but not on the merits. Promptly, then, on January 15, 1918, the plaintiff in error moved to dismiss for lack of prosecution. The defendant in error made a counter motion for, leave to reargue, on additional facts, the motion made on December 27, 1916, for judgment by default. The defendant in error’s theory was that upon the trial of the plea it was demonstrated that the certificate and affidavit upon which the plea to jurisdiction, based upon the alienage of the intestate was made, were false, and that the court was thus imposed upon, and should therefore deny the application previously made to file the plea to the merits upon a reconsideration.
Because of these dilatory tactics and pleas, which were without merit, it appears that the defendant in error, who had expended some $2,000 in cash disbursements for the prosecution of this action, found herself without funds, and, worse still, without witnesses, because of this long delay. The witnesses had scattered about the country, and the defendant in error was no longer in a position to present the case as she did when it was first tried. A widow and six children, who had, at least, made out a prima facie case, were to be deprived of just compensation for the loss of a husband and father, if the motion of the plaintiff in error to dismiss for lack of prosecution prevailed. These conditions were not of the making of the defendant in error, but were due to the course of conduct of the plaintiff,in error.
The plaintiff in error was doing business in the state of New York for years prior to the death of the intestate, selling coal and maintaining coal yards in various places in this state. It had an agent designated upon whom service might be made. The law was settled for the guidance of the District Judge when this first plea was interposed, and this, in an action against the same plaintiff in error, in which the same attorneys appeared for it. Smolik v. Phila. & Reading C. & I. Co. (D. C.) 222 Fed. 148.
When the trial took place in May, 1916, the same plea was urged. The Court of Appeals of the state of New York had then decided against the same contentions of this plaintiff in error. Bagdon v. Phila. & Reading C. & I. Co, 217 N. Y. 432, 111 N. E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389. The opinions of these two cases were cited with approval in the Supreme Court of the United States (Penn. Co. v. Gold Issue Mining Co, 243 U. S. 93, 37 Sup. Ct. 344, 61 L. Ed. 610). That process served under the circumstances existing in the case at bar is valid has been held uniformly by the courts in litigations in which both the plaintiff in error and its counsel participated. Phila. & Reading C. & I. Co. v. Gilbert, 245 U. S. 162, 38 Sup. Ct. 58, 62 L. Ed. 221; Same v. Saccripante, 247 U. S. 522, 38 Sup. Ct. 583, 62 L. Ed. 1247; Tauza v. Susquehanna C. & I. Co, 220 N. Y. 259, 115 N. E. 915; Pomeroy v. Hocking Valley Ry. Co, 218 N. Y. 530, 113 N. E. 504; Smolik *540v. Phila. & Reading C. & I. Co. (D. C.) 222 Fed. 148; Bagdon v. Phila. & Reading C. & I. Co., 217 N. Y. 432, 111 N. E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389.
With this wealth of authority against the plaintiff in error, and with a direct repudiation of its contention by the Supreme Court of the United States, it still pressed upon the District Judge these contentions, and now, in this court, seriously asks us to overrule these authorities and say that this foreign corporation, engaged in interstate commerce, which has designated an agent upon whom service might be made, can be sued in New York only if the cause of action arises here, and cannot be sued where the cause of action arises in the state of Pennsylvania. Such a plea could not be interposed in good faith, and should be treated as tantamount to an abandonment of the defense upon the merits. This court said, in Lehigh Valley Coal Co. v. Yensavage, 218 Fed. 547, 550, 134 C. C. A. 275, 278:
“We (Jo not, therefore, wish to be understood as deciding, where the plain* tiff alleges residence in the district in suit, and the defendant traverses the allegation only by denying any information about it, that if, during the proceedings, it appears that the plaintiff cannot prove his allegation, the defendant’s general appearance has bound him. All we wish to lay down is that, when once the truth appears, then at least the defendant must choose between his' plea in abatement and his plea to the merits. Assuming that it is not bad to ' couple the two positions before the defendant is informed, there can be no justification in allowing him to proceed thereafter in the alternative.”
Where the defendant appears and pleads to the merits, as it did here, it waives any rights to challenge thereafter the jurisdiction of the court on the ground that the suit has been brought in the wrong district. St. Louis & San Francisco R. Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; Western Loan Co. v. Butte & Boston Mining Co, 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101.
Upon the trial in May, 1916, an issue was raised as to the citizenship of the deceased, for the defendant in error testified that she was a citizen, because her husband was. Immediately counsel for the plaintiff in error wired to a representative in Pennsylvania and received a return answer — a telegram from the plaintiff in error to its counsel, showing its knowledge of the intestate’s application for citizenship and his admission to citizenship. How could the plaintiff in error thereafter interpose a plea to the jurisdiction of the court because of the alien-age of the intestate, in view of this information? Indeed, the plaintiff in error produced an affidavit of one Morgan and a certificate of a pro-thonotary that there was no record of the naturalization of George Kever at Pottsville. Attempt is made now to escape from the public record upon the claim that the “v” in the word “Kever” looked as if it were an “r.” This cannot help the plaintiff in error, for it did not see the certificate until the trial of the plea, and therefore the plea could not have been interposed in reliance thereon. What appeared on the records as to naturalization was sufficient to satisfy section 2167 of the United States Revised Statutes.
In my opinion, this conduct justifies the conclusion that the defense of want of jurisdiction on the question of service was frivolous, and that tire plea upon the ground of alienage was sham. The dismissal of *541tbe sham plea left the plaintiff in error in default, since it had voluntarily withdrawn its answer over the objection of the defendant in error. This was an intentional default. It now complains of the failure of the District Judge to dismiss the action for want of prosecution and in refusing to open a default to again permit it to litigate upon the merits.
Judge Chatfield says that, if he had known these facts when he granted the motion reinstating the defendant’s answer on May 14, 1917, he would have refused to do so. This order was still within his power, and he had a right to vacate because he became acquainted with these facts subsequently, which, if known at the time, would have prevented him from making it. His ruling, therefore, was a refusal to open a default which the plaintiff in error had intentionally and obstinately suffered. It differs from defaults due to negligence or oversight, which are promptly opened. The plaintiff in error has been obstinate in its position that it cannot be sued in the New York courts by a resident of the state, or in the jurisdiction of the District Court for the Eastern District of New York. It endeavors to support the claim upon the theory that “living is higher and money correspondingly cheaper in New York than in the mining districts of Pennsylvania.” Of course, such reasons find no support in the law.
There is no federal statute governing the opening of defaults in actions at law, and the practice under the Conformity Act is governed by the state statute. Wylie v. Lynch, 195 Fed. 386, 115 C. C. A. 288. Defaults, occurring under circumstances as here disclosed, are not opened by the state courts. City of New York v. Smith, 138 N. Y. 676, 34 N. E. 400; Wight v. Bennett, 55 Hun, 610, 8 N. Y. Supp. 808; Herbert Land Co. v. Lorenzen, 113 App. Div. 802, 99 N. Y. Supp. 937; Thorburn v. Gates, 177 App. Div. 474, 164 N. Y. Supp. 307. The withdrawal of the answer by the plaintiff in error justified the entry of a judgment by default after jurisdiction of the court has been acquired. Craighton v. Kerr, 87 U. S. (20 Wall.) 8, 22 L. Ed. 309; The Last Chance Co. v. Tyler Mining Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859.
The judgment should be affirmed.