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liberal in permitting a special appearance to attack irregularities of service or want of jurisdiction. See Simkins, Federal Equity Suit, 2d ed. pp. 329-338.

When is the Suit Said to be Begun.

When by the law of the State in which the court is sitting the filing of the petition in the court of proper jurisdiction is the beginning of the suit, the Federal court will conform to the rule. International Bank & Trust Co. v. Scott, 86 C. C. A. 248, 159 Fed. 60; Re Connoway, 178 U. S. 430, 431, 44 L. ed. 1137, 1138, 20 Sup. Ct. Rep. 951; Goldenberg v. Murphy, 108 U. S. 162, 27 L. ed. 686, 2 Sup. Ct. Rep. 388; Deepwater R. Co. v. Western Pocahontas Coal & Lumber Co. 152 Fed. 824. But it seems the filing of the petition would not stop the running of the statute of limitations until process had been sued out and served or a bona fide effort made to serve the defendant. United States v. American Lumber Co. 80 Fed. 315, 316; Michigan Ins. Bank v. Eldred, 130 U. S. 697, 32 L. ed. 1082, 9 Sup. Ct. Rep. 690.

Suit in Forma Pauperis.

By act of July, 1892, 27 Stat. at L. 252, chap. 209, U. S. Comp. Stat. 1901, p. 706, any citizen of the United States entitled to sue in the Federal courts may do so, without being required to prepay costs or give security therefor, by filing under oath a statement in writing that because of his poverty he is unable to do so; setting forth briefly the nature of the cause of action. Boyle v. Great Northern R. Co. 63 Fed. 539; Volk v. B. F. Sturtevant Co. 39 C. C. A. 646, 99 Fed. 532; McDuffee v. Boston & M. R. Co. 82 Fed. 865; Woods v. Bailey, 111 Fed. 121. As to filing after suit brought, see Donovan v. Salem & P. Nav. Co. 134 Fed. 317. But the act does not apply to appellate proceedings. Taylor v. Adams Exp. Co. 90 C. C. A. 526, 164 Fed. 616. The process must be served. Act of 1892, cl. 3. Columb v. Webster Mfg. Co. 76 Fed. 198; Gallaway v. Ft. Worth Bank (Galloway v. State Nat. Bank) 186 U. S. 177, 46 L. ed. 1111, 22 Sup. Ct. Rep. 811.

Sufficiency and Scope of Pleading.

The sufficiency and scope of pleadings are determined by State laws and decisions. Glenn v. Sumner, 132 U. S. 156, 33 L. ed. 301, 10 Sup. Ct. Rep. 41; Bond v. Dustin, 112 U. S. 609, 28 L. ed. 837, 5 Sup. Ct. Rep. 296; Knight v. Illinois C. R. Co. 103 C. C. A. 514, 180 Fed. 372; Robertson v. Perkins, 129 U. S. 234, 235, 32 L. ed. 687, 9 Sup. Ct. Rep. 279; Norfolk & P. Traction Co. v. Rephan, 110 C. C. A. 254, 188 Fed. 276; Gadonnex v. New Orleans R. Co. 128 Fed. 806, 807; Alexander v. Gordon, 41 C. C. A. 228, 101 Fed. 94; Van Doren v. Pennsylvania R. Co. 35 C. C. A. 282, 93 Fed. 262. You may look to State statutes and decisions to determine construction of pleadings. Bryson v. Gallo, 103 C. C. A. 424, 180 Fed. 71-74 and cases cited; Swift & Co. v. Jones, 76 C. C. A. 253, 145 Fed. 491; Hein v. Westinghouse Air Brake Co. 168 Fed. 766, 769; Burlington Ins. Co. v. Miller, 8 C. C. A. 612, 19 U. S. App. 588, 60 Fed. 256; Barnes v. Union P. R. Co. 4 C. C. A. 199, 12 U. S. App. 1, 54 Fed. 87.

CHAPTER VI.

DEFENSIVE PLEADINGS.

Having seen the limited nature of Federal jurisdiction, and that jurisdiction must appear by direct allegations in the petition or declaration, then, if it should not so appear you may demur, or you may raise the issue by motion to dismiss. Hagstoz v. Mutual L. Ins. Co. 179 Fed. 569. Being fundamental, there is no exclusive method of calling the court's attention to it. Adams v. Shirk, 55 C. C. A. 25, 117 Fed. 801; Lewis Blind Stitch Co. v. Arbetter Felling Mach. Co. 181 Fed. 974; Steigleder v. McQuesten, 198 U. S. 141, 49 L. ed. 986, 25 Sup. Ct. Rep. 616; Ladew v. Tennessee Copper Co. 179 Fed. 245.

The rule may be stated that want of jurisdiction may be pleaded on the law side in any manner available in the State courts since the conformity act in 1872; and if by the State Code the general denial puts in issue all the allegations of the petition, it will put in issue all jurisdictional allegations, and proof may be offered. Yocum v. Parker, 66 C. C. A. 80, 130 Fed. 772; Roberts v. Lewis, 144 U. S. 656, 36 L. ed. 582, 12 Sup. Ct. Rep. 781; Roberts v. Langenbach, 56 C. C. A. 253, 119 Fed. 349; Greene v. Tacoma, 53 Fed. 563; Jones v. Rowley, 73 Fed. 288. If required to be set up by answer in State Code, the plea in abatement will be considered as an answer. Whelan v. Rio Grande Western R. Co. 111 Fed. 328. If, however, the issue is met by demurrer or special plea or answer, then you may use the following forms, as these defenses are permitted before pleading to the merits if desired. Jones v. Rowley, 73 Fed. 287.

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In District Court of the United States for the....

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The Demurrer of C. D. (or Joint Demurrer of C. D. and E. F.)

And now comes the defendant or defendants, and demur to the petition filed herein, and for cause of demurrer shows that it appears from said

petition that the jurisdiction of this court depends on diversity of citizenship, and that said diversity is not shown for that plaintiff and defendant or one of the defendants (naming him) are, as appears, citizens of the same State, and not different States (or that it appears both plaintiff and defendant are aliens; or that there are aliens on both sides of the controversy with citizens of States; or that neither plaintiff nor defendant are citizens of the State in which the suit is brought; or citizens of the same State are suing in a third State; or that two or more citizens of different States are suing a defendant from a third State, or any other objection which may be raised under the rules of jurisdiction in the Federal courts; only be specific as to the ground of objection, wherefore defendant pray the judgment of the court that he be dismissed with his costs in this behalf incurred

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Whether the issue is raised by demurrer or motion, the above form may be used.

Where the petition sufficiently alleges citizenship, but it is not true as alleged, the issue may be raised by a special plea or in the answer, and the following form may be used.

(Title and heading as above if by special plea.)

.......

That it appears that the jurisdiction of this court depends on diversity of citizenship of the parties to this suit, and that so much of the allegations of said petition as avers said diversity of citizenship is not true, for defendant avers that the plaintiff A. B. is not a citizen or resident of the State of as alleged by him, but was at the commencement of this suit (and is now) a citizen and resident of the State of ...... of which State the defendant or one of the defendants (naming him) was at the commencement of this suit a citizen and resident (or that plaintiff and defendant are citizens of different States from that in which the suit is brought; or any other ground of objection as would defeat jurisdiction under the rules given governing the jurisdiction of the Federal courts. All of which matters and things this defendant, or these defendants, aver to be true and plead the same in bar of plaintiff's suit, and pray the court to dismiss the cause, and that he have judgment for his reasonable costs in this behalf incurred.

The same form may be used if set up in answer. Where a corporation is defendant, the forms set forth in Simkins, Federal Equity Suit, 2d ed. pp. 124, 125, may be used. However, where a State Code gives to a general denial the effect of putting in issue every allegation of the petition, the existence of

diverse citizenship would be put in issue. Roberts v. Lewis, 144 U. S. 653-658. Where the issue is as to the district of suit or venue, use forms given in Simkins, Federal Equity Suit, 2d ed. pp. 130, 131. Where the want of necessary citizenship appears on the trial, use the form of motion to dismiss given in Simkins, Federal Equity Suit, 2d ed. p. 128.

Raising Issue as to the Existence of a Federal Question.

When a Federal question is the basis of jurisdiction the question of citizenship is not material, as citizens of the same State may sue each other in the Federal courts if jurisdiction rests upon the existence of a Federal question. The suit, however, can only be brought in the State and district of which the defendant is an inhabitant. The want of a Federal question in the statement of plaintiff's case, if jurisdiction depends on it, may be raised by demurrer if the want of it appears, or by plea or answer if it is untruly and fraudulently alleged. As to how and where the Federal question is to appear has been thoroughly discussed in Simkins, Federal Equity Suit, 2d ed. pp. 152– 158. As to how the issue is raised, see Simkins, Federal Equity Suit, 2d ed. p. 167; and form given on p. 168, id. may be used and adapted to the suit at law.

Raising the Issue as to Sufficiency of Amount to Give Jurisdic

tion.

The issue may be raised by demurrer if apparent, or by plea or answer or affidavit, or by motion or suggestion, or the court may of his own accord act if it appears in the evidence pertinent to the issue. Simkins, Federal Equity Suit, 2d ed. p. 199. The forms for raising the issue, whether by demurrer, plea, answer, etc., are given in Simkins, Federal Equity Suit, 2d ed. pp. 201, 202, mutatis mutandis, as to the suit at law. Whether the suit involves the jurisdictional amount is not controlled by State statutes. Heffner v. Gynne-Treadwell Cotton Co. 87 C. C. A. 606, 160 Fed. 635.

S. S. at L.-3.

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