The matter before us is a renewed plea to the jurisdiction. The controversy here is really but one suit. It was filed in the Mayaguez district of this court on November 19, 1900, and hence is one of the oldest cases on the docket. After a considerable legal battle, a receiver was appointed (1 Porto Eico Fed. Eep. 299), who, it is said, never qualified, because, as it is said, he could obtain possession of no assets. After default and a decree pro confesso, a final decree was entered in the original suit under date of June 8, 1901. This decree
A good deal of controversy took place with reference to the matters in litigation about the time this bond was filed, and, on October 13, 1903, a plea to the jurisdiction for lack of diverse citizenship, such as is contemplated by the several acts of Congress, was interposed. It does not appear that this plea was, at that time, passed upon. The pleadings were, from time to time, amended, and many demurrers, exceptions, and dilatory motions were filed.
On June 1, 1907, we wrote an opinion on the plea and demurrer in this case, overruling both of them (see 3 Porto Eico Fed. Eep. 73). We stated in that opinion that it was rendered hurriedly, and intimated that we had doubts about the rule laid down. Eecently the parties reargued the plea to the jurisdiction and filed briefs therein, to which we have given careful attention.
We have examined the question now more extensively than we did before, and, however reluctant a court may be as to reversing itself, it should not hesitate to do so if it was wrong, so long as it still has full control of the record. We therefore are constrained to hold that we were mistaken in our view of the law under the facts of the case in our opinion in 3 Porto Kico Fed. Kep. 73, and we are further of the opinion that a Federal- question to give jurisdiction must be the actual foundation of the suit, and not something coming in incidentally, and that the suspension-of-payments law referred to was not an act of Congress, but a mere military order.
Therefore the plea to the jurisdiction will be sustained and the whole case, as above entitled under two headings, will be dismissed; but the complainants will not be required to pay any costs save those that accrued since the filing of the bond. The respondents having paid the costs to that date, they will be left in that condition.