(concurring and dissenting):
Insofar as the opinion of Judge Moore concluded that there was no jurisdiction in the district court to entertain this action, I concur and I therefore vote to remand the cause to the district court with instructions to dismiss the complaint upon the ground of lack of jurisdiction.
Insofar as the opinion of Judge Moore states, “But even assuming jurisdiction arguendo, we hold that Lefcourt has failed to establish a case on the merits,” I must dissent as to the inclusion of this statement for the following reasons:
This court has held that “it was the duty of the court to ascertain whether it had jurisdiction before proceeding to hear and decide the ease on the merits.” Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425 (1948); see also Emmons v. Smitt, 149 F.2d 869 (6th Cir. 1945), cert. denied 326 U.S. 746, 66 S.Ct. 59, 90 L.Ed. 446 (1945). The trial court did not make such a determination in the instant case and instead dismissed plaintiff-appellant’s complaint on the merits. Lefcourt v. Legal Aid Society, 312 F.Supp. 1105, 1111 (S.D.N.Y. 1970). The course of action chosen by the district court, however, does not prevent this court from examining the jurisdictional question.
*1158Although certain defenses and questions of jurisdiction may be waived by the agreements and acts of the parties, lack of jurisdiction over the subject matter may not be waived. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263 (1936); Gavin v. Hudson & M. R. Co., 185 F.2d 104 (3rd Cir. 1950).
Rule 12, F.R.C.P., provides in pertinent part:
“Rule 12. Defenses and Objections * * *
“(h) Waiver or Preservation of Defenses
“(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed.Rules Civ. Proc. Rule 12(h) (3), 28 U.S.C.
The majority opinion has found that the district court did not have jurisdiction to entertain the suit. This precludes any discussion of the merits of the action by this court. “While the District Court lacked jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” United States v. Corrick, supra, 298 U.S. at 440, 56 S.Ct. at 832; see also Kern v. Standard Oil Corp., 228 F.2d 699 (8th Cir. 1956).
Furthermore, when the district court proceeds to the merits despite lack of jurisdiction, that decision is without effect and should not be permitted to stand. As stated in Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 339, 70 L.Ed. 682 (1926): “[I]f there was an absence of federal jurisdiction, this court could not consider the merits, but would have to reverse the decrees of both courts below, and remand the cause to the District Court, with a direction to dismiss the bill for want of jurisdiction.” See also Rowe v. Nolan Finance Co., 79 U.S.App.D.C. 35, 142 F.2d 93 (1944); Kansas-Nebraska Natural Gas Co. v. City of St. Edward, Neb., 234 F.2d 436 (8th Cir. 1956). The appeal record of 574 pages contains the testimony of some fifteen witnesses and as we are informed consumed three days of the trial court. The primary function of the district court is to try litigation, but only if jurisdiction exists.
The cause must therefore be remanded to the district court with instructions to dismiss the complaint for lack of jurisdiction.