ROBERTS

v.

LEWIS

Mr. Justice Gray,

after, stating the case as,above, delivered the opinion of the court.

The principal question argued in this, case is upon the true construction of the devise of Jacob Dawson to his wife, in view of the conflicting decisions of this court and of the Supreme Court of Nebraska. Giles v. Little, 104 U. S. 291; Little v. Giles, 25 Nebraska, 313. See also Little v. Giles, 118 U. S. 596; Giles v. Little, 134 U. S. 645.

But a preliminary question to be decided is whether the Circuit Court of the United States appears upon this record to have had any jurisdiction of the case.

The petition or declaration alleges in due form that the plaintiff is a citizen of the State of Wisconsin, and the defendant is a citizen of the State of Nebraska; and further alleges that the plaintiff has a legal estate in and is entitled to the immediate possession of certain lots in Lancaster County in the State of Nebraska, and the defendant has kept and still keeps the plaintiff out of possession thereof; wherefore the plaintiff prays for judgment for delivery of possession of the premises to him. The answer sets up two defences: 1st. Open and adverse possession of the premises by the defendant for ten years; 2d. A .general denial of each and every allegation in the petition. The special verdict finds facts bearing on the merits of the case, but nothing as to the citizenship of the parties.

Whenever the jurisdiction of the Circuit Court-of the United States depends upon the citizenship of the parties, it has been held fromjthe beginning that the requisite citizenship should be alleged by/the plaintiff, and must appear of record: and that when it does not so appear this court, on writ of error, must reverse, the judgment, for want of jurisdiction in the Circuit Court. Brown v. Keene, 8 Pet. 112; Continental Ins. Co. v. Rhoads, 119 U. S. 237.

Doubtless, so long as the rulés of pleading in the courts of the United States remained as at common law; the requisite citizenship • of the parties, if duly alleged or apparent in the declaration, could not be denied by the-defendant, except by plea in abatement, and was admitted by pleading to the merits of the action. Sheppard v. Graves, 14 How. 505.

But since 1872; when Congress assimilated the rules of pleading,-practice and forms and modes of procedure in actions, at law in .ithe courts of. the United States, to those prevailing'in the courts of the-several States, all defences are open to a defendant in the Circuit Court of the United States, under any form of plea, answer or demurrer, which would have been open to him under like pleading in the courts of the State within which the Circuit Court is held. Act of June 1, 1872, c. 255, § 5; 17 Stat. 197; Rev. Stat. § 914; Chemung Canal Bank v. Lowery, 93 U. S. 72; Glenn v. Sumner, 132 U. S. 152; Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, 39, 10.

By the Nebraska Code of Civil Procedure, § 62, every civil action is commenced by petition;' and by § 92, the petition must contain “ the name of the court and county in which the action is brought, and the names of the parties, plaintiff and defendant,” “ a statement of the facts constituting the cause of action,” and “ a demand of the relief to which the party supposes himself entitled.” By § 91, the defendant may demur to the petition for certain matters appearing on its face, among which are “ that the court has no jurisdiction of the person of the defendant, or the subject of the actipn,” and “ that the petition does not state facts sufficient to constitute a cause of action ; ” and by § 95,. the demurrer must speeify the grounds of objection, or else be regarded as limited to the latter' ground only. By § 96, “ when any of the defects enumerated in § 91 do not appear upon the face of the petition, the objection may be taken by answer *, ” and in every case, by § 99, the answer must contain “ a general or specific denial of each material allegation of the petition controverted by the defendant,” and “ a statement of any new matter constituting a defence.”

Under this code, as. under the code of New York, upon, which it was modelled, the answer takes the place of all pleas at common law, whether general or special, in abatement or to "the merits; and a positive denial, in the answer of “ each and every allegation in the petition ”. puts in issue every material allegation therein, as fully as if it had been specifically and separately denied. Sweet v. Tuttle, 11 N. Y. 465; Gardner v. Clark, 21 N. Y. 399; Donovan v. Fowler, 17 Nebraska, 247; Hassett v. Curtis, 20 Nebraska, 162; Maxwell’s Practice (4th ed.) 127, 128; Bliss on Code Pleading (2d ed.) § 315. And by the express terms of §§ 94, 96, above cited, an objection that' the court has no jurisdiction, either of the person' of the defendant or of the subject of the action, may be taken by demurrer, if it appears on the face of the petition, and by answer, if it does not so appear. The necessary «consequence is that the allegation of the citizenship of the parties, being a material allegation properly made in the petition, was put in issue by the answer, and, like other affirmative and material allegations made by the plaintiff and denied by the defendant, must be proved by the' plaintiff.

The record showing no proof or finding upon this essential point, on which the jurisdiction of the Circuit Court depended, the judgment must be reversed, with costs, for want of jurisdiction in the Circuit Court, and the case remanded to that court, which may, in. its discretion, either dismiss the action for want of jurisdiction, or set aside the verdict and permit the plaintiff to offer evidence of the citizenship of the parties. Continental Ins. Co. v. Rhoads, 119 U. S. 237.

Judgment reversed, and case remanded to the Circuit Court for further proceedings in accordance with the opinion of this court.