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may be disposed of as a preliminary matter by the court, or may be submitted to tho jury. Wetmoro vs. Rymor, 169 U. S. 115, 120; Guarantee Trust Company, vs. Collings, (CCA 3), 76 F. (2d) 870, Cert. Den. 295 U. S. 747. either event, the plaintiff has the burden of supporting his jurisdictional allegation with compotent evidence. McNutt vs. Gon. iiotors &c. Corp., 298 U. S. 178.

In tho caso at bar, depositions should be taken so that the court may have propor ovidonce before it upon which to do tormino the citizenship of the plaintiff. If the plaintiff's citizenship bo not clearly establishod by dopositions, this question will then be submitted to a jury.

And now, this 16th day of Novembor, 1938, it is ordered that depositions bo taken within thirty days in accordance with law and rule of court to do tormino tho citizenship of the plaintiff.

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In a case in which argument was had subsequently to September 16, 1938, on an affidavit of defense filed prior to that date under the Pennsylvania Practice Act, such affidavit should be treated as equivalent of a motion to dismiss under the new Rules. (Rule 86)

SCHOONMAKER, D. J.

This case was originally before the court on defendant's affidavit of defense raising questions of law as to plaintiff's original statement of claim. In an opinion filed April 9, 1938, we held that this statement of claim did not state a good cause of action against defendant, and allowed plaintiff to file an amended statement of claim. This the plaintiff did, and thereupon the defendant filed an affidavit of dufenso raising questions of law under the Pennsylvania Practice Act. This affidavit was filed before the effective date of the Federal Rules of Civil Procedure, but the case was argued thoroaftor. This affidavit of defense raising questions of law is the oquivalent of a motion to dismiss for failure to state a claim upon which relief can be granted under the new Rules. We shall therefore consider the affidavit of defense raising questions of law as a motion to dismiss for failure to state a claim upon which relief can be granted.

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1. In a contract action removed from a state into a Federal court, plaintiff's motion for judgment declining defendant permission to plead further on the grounds that such further pleading was prohibited by State statute, was denied after the effective date of the Rules, the Court holding that the Federal Rules were controlling and that leave to amend pleadings should be frocly given when justice so requires. (Rule 15 (a) )

2. The Federal Rules of Civil Procedure were applied, after the effective date thereof, in a civil action originally filed in a state court prior to September 16, 1938, but subsequently removed into a Federal court. (Rule 81 (c))

3. Application of the Rules, after the effective date thereof, in an action removed from a state court, was held not to work any injustice upon any of the partios. (Rulo 86)

MIZE, D. J.

Earl Moore, a citizen of Mississippi, sued the Illinois Central Railroad Company, a citizen of Illinois, for damages growing out of an alleged breach of contract. The case originated in the state court of Hinds County, in which court the defendant filed six special pleas. The plaintiff demurred to the first four and sixth and replied to the fifth, to which replication the defendant demurred. The lower court sustained the contentions of the defendant and the case was thereupon appealed by the plaintiff to the Supreme court. That court reversed the lower court, holding that the domurrers to the first four pleas and the sixth plea should have been sustained and that the defendant's demurrer to plaintiff's replication should have been overruled. This case is reported in 180 Miss. 276, 176 So. page 593.

The mandato of that court having gone back to the lower court, the plaintiff thereupon amended his declaration and incroased his demand for damages to the sum of $12,000. Thereupon the defendant immediately filed a petition to remove to this court, which was sustained and the case transferred here, therefore, this court has jurisdiction.

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