DE SOBRY
v.
NICHOLSON
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In this appeal of a contract dispute, the Supreme Court affirmed the Circuit Court's judgment where one of the original contracting partners had assigned their interest to the plaintiff, allowing the plaintiff to sue alone despite another assignor being a citizen of the same state as the defendant. The Court held that objections to federal jurisdiction based on citizenship must be raised by plea in abatement before trial on the merits, and that any defect in how the contract was pleaded was cured by the jury's verdict.
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Mr. Justice SWAYNE delivered the opinion of the court. No exception can be considered here which was not taken in the court below.* The point relied upon to reverse the judgment is not that the copartners of the plaintiff below could not assign their interests in the original contract so as to vest in him the right to sue in his own name alone, but that one of the assignors was, at the time of the commencement of the action, a citizen and resident of the same State with the defendant, and that hence the Circuit Court had no jurisdiction. To this there are two answers.
The objection to jurisdiction upon the ground of citizenship, in actions at law, can only be made by a plea in abatement. After the general issue, it is too late. It cannot be raised at the trial upon the merits.† If a plea in abatement be filed with the general issue, the latter waives the former.‡ Where a plea in abatement is relied upon, the burden of proof rests upon the defendant.§ In equity, the defence must be presented by plea or demurrer, and not by answer.ǁ The court below properly overruled the motion. We thiuk, also, that a new contract between the plaintiff and the defendant, and its execution by the plaintiff, are substantially averred, and that the original contract is set out as inducement. It is said by the counsel for the plaintiff in error, that if such a contract be alleged, it is done with careful ambiguity and indefiniteness. Conceding this to be so, it is a ease, not of a defective title, but of a title defectively stated, which is always cured by the verdict.* Judgment aeeirmed with costs. * Stoddard et al. v. Chambers, 2 Howard, 285; McDonald v. Smalley et al.,1 Peters, 620. † Smith et al. v. Kernochen, 7 Howard, 216. ‡ Bailey v. Dozier, 6 Id. 30; Sheppard et al. v. Graves, 14 Id. 505. § Ib. 505, 512. ǁ Livingston v. Story, 11 Peters, 351. *
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McNUTT v. Gen. Motors Acceptance Corp., 298 U.S. 178 (U.S. 1936)…ent. And where the jurisdictional issue was thus raised, the burden of proof was upon the defendant. The objection was waived by pleading to the merits. De Wolf v. Rabaud, 1 Pet. 476, 498; Sheppard v. Graves, 14 How. 505, 510; De Sobry v. Nicholson, 3 Wall. 420, 423; Farmington v. Pillsbury, 114 U. S. 138, 143. In equity, the defense could be presented by plea or demurrer but not by answer. Livingston’s Executrix v. Story, 11 Pet. 351, 393; De Sobry v. Nicholson, supra; Hunt v. New York Cotton Exchange, 20…1 / 2
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Alexander v. United States, 138 U.S. 353 (U.S. 1891)…y error in impanelling the jury, in admitting testimony, or in any other proceeding during the trial by which his rights -are prejudiced, and in case of an adverse ruling to note an exception. Stoddard v. Chambers, 2 How. 284; De Sobry v. Nicholson, 3 Wall. 420; Canal Street Railroad v. Hart, 114 U. S. 654; Thompson on Trials, §§ 690, 693, 700. (2) To understand fully the force of the second error assigned, it is necessary to state so much of the evidence as exhibits substantially the case made out by th…
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Chase v. Wetzlar, 225 U.S. 79 (U.S. 1912)…the court. The theory as to the burden of proof being on the defendant, on which this proposition proceeds, it is insisted, is sanctioned by the following decisions of this court: Sheppard v. Graves (1852), 14 How. 505; De Sobry v. Nicholson (1865), 3 Wall. 420; Wetmore v. Rymer (1898), 169 U. S. 115, and Hunt v. New York Cotton Exchange (1907), 205 U. S. 322. And a decision of the Circuit Court of Appeals for the Eighth Circuit in Hill v. Walker, 167 Fed. Rep. 241, is also referred to as containing a full…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- M'Donald v. Freeman Smalley, 1 Pet. 620 (U.S. 1828)
- Edward Livingston's executrix v. Story, 11 Pet. 351 (U.S. 1837)