dissenting:
I think the decision of the Circuit Court of Appeals was right and should be affirmed.
Respondent, reinsurer of an automobile public liability insurance policy, has been made a party to a garnishment proceeding instituted under the Missouri statutes by petitioner, who has secured a Missouri default judgment upon a liability of the insured said to be covered by the policy. By this suit brought in the federal District Court for Kansas, respondent now seeks among other things to set aside the judgment, so far as it establishes liability against the insurer, as fraudulently obtained.
Respondent’s bill of complaint states a cause of action which it is entitled to have adjudicated in some court. *500The considerations suggested by Mr. Justice Douglas are of course relevant to the merits of respondent’s case, and should be tried with other issues wherever and whenever they are to be tried. As the District Court below had jurisdiction—and as no other reason is advanced for declining jurisdiction—it was plainly its duty to hear and decide all the issues necessary for disposition of the case unless it was made to appear with reasonable certainty that the issues could be adjudicated in the Missouri courts. Petitioner assumed that burden by his motion in the District Court for an order dismissing the suit and remitting respondent to the state courts. The data, including statements of the facts spread upon the record, which he submitted in support of the motion have now received the consideration of three courts. None of them has said, and in the circumstances of this case no federal court could say, either with binding authority or with reasonable certainty, that respondent can litigate in the Missouri courts its asserted right to set aside petitioner’s judgment for fraud. Petitioner, who is not a citizen or resident of Missouri and not subject to the jurisdiction of its courts unless he voluntarily appears in an action there, has not said, and in this Court has carefully avoided saying, that he would appear in any independent suit brought in the Missouri courts to attack the judgment.
Further, it affirmatively appears that the question whether respondent can litigate its present cause of action in the statutory garnishment proceeding in Missouri is at best not free from doubt. The Missouri garnishment statutes do not deal expressly with the nature of the issues that can be raised in a garnishment proceeding. Missouri Revised Statutes, 1939, §§ 1560-1589. But the Missouri intermediate appellate courts seem to agree that in such a proceeding the garnishee cannot challenge the validity and effectiveness of the judgment save for want of juris*501diction of the court which rendered it. Potter v. Whitten, 161 Mo. App. 118, 131-32, 142 S. W. 453; Nevatt v. Springfield Normal School, 79 Mo. App. 198, 201; Reid, Murdock & Co. v. Mercurio, 91 Mo. App. 673, 678. The Missouri Supreme Court has never disapproved these decisions.
The Court of Appeals below in deciding that the cause should be litigated in the present suit declared, 121 F. 2d at 778:
“A federal court may not refuse to assume jurisdiction merely on the ground that another remedy is available or because another suit is pending, if the controversy between the parties will not necessarily be determined therein. Maryland Casualty Co. v. Consumers Finance Service, Inc., 101 F. 2d 514.”
Here it is evident, despite the diligence of counsel, that the ability of respondent to assert its cause of action in the Missouri garnishment proceeding is uncertain and must remain so until the Supreme Court of Missouri has spoken. Just how respondent’s ability to maintain its suit in Missouri can be made more certain or even reasonably probable, or how the cause of justice will be advanced by compelling respondent to begin over again the nearly three years’ course of litigation which it has now traveled, is not revealed. The concededly erroneous decision of the District Court has been reversed by the Circuit Court of Appeals. Unless this Court is now prepared to say that respondent’s ability to maintain the suit in the state court is free from doubt, we should leave the judgment undisturbed and not deny to respondent the benefit of the federal jurisdiction which Congress has sanctioned. One of the chief purposes of creating the diversity of citizenship jurisdiction was to afford to suitors an unclouded opportunity to assert their rights in the federal courts when the exigencies of state court jurisdiction of subject matter or *502parties, or both together, as in this case, render doubtful their ability to proceed in the state courts. In such a case a suitor ought not to be penalized, as respondent plainly is, for invoking the federal jurisdiction.
The Missouri law, if not conclusively against the assertion of the present cause in the Missouri garnishment proceeding, is at least so doubtful that respondent ought not to be compelled to seek the futile prophecy of the district court in Kansas as to how the Missouri courts will resolve an unsettled point of Missouri practice. Since petitioner has failed to sustain his burden of showing that the case is a proper one for dismissal, the District Court should exercise its jurisdiction by proceeding to determine the merits without further delay. If this litigation is ever to end, it is important for it to get started.
Me. Justice Roberts and Mr. Justice Jackson join in this dissent.