HAWLEY, District Judge
(after stating the facts as above). This is a, suit to quiet plaintiff’s title (appellant herein) to a lode mining claim situated in Shoshone county, Idaho, known as and called the “Kirby Fraction.” The bill of complaint is in the usual form in actions of this character. The suit does not purport to he brought, nor is it instituted, in support of any adverse claim died in the lamí office in any patent proceeding. The bill of complaint herein shows jurisdiction of the court hy reason of diversity of citizenship of the contending parties, the jurisdictional value being alleged. To plaintiff’s bill of complaint the defendant (appellee herein) interposed a [506]*506plea, in bar,' which is set forth at length in the statement of facts. To this plea no answer or demurrer as to its sufficiency was filed. The plea was set for trial, and after argument thereon the court sustained the plea, and dismissed the suit. Hence this appeal.
It is assigned as error that "the trial court erred in sustaining the plea of respondent to complainant’s complaint, and in ordering the said complaint to be dismissed, because the said plea failed to state facts sufficient to constitute a valid defense to complainant’s complaint.”
1. It will be noticed that there are two pleas set up:- (1) The bar of the judgment in the United States court in Rutter et al. v. Shoshone Min. Co.; and (2) the pendency of the action of Shoshone Min. Co. v. Rutter et al. in the state court. No leave was asked of the court to allow double pleas. It is therefore contended by appellant that the pleas in bar should have been overruled on account of duplicity and multifariousness. The rule is well settled that but one plea can be set up in an equity suit without express leave of the court. As was said by the court in McCloskey v. Barr (C. C.) 38 Fed. 165, 168:
“It is not usual, or in conformity with proioer practice, for a defendant, without previous special leave of the court, to file several separate pleas, or to present several distinct and independent defenses, in one plea to the suit, for the reason that the defense proper for a plea is such as reduces the cause or some distinct part of it to a single point or issue; the object of the plea being to save litigants the expense and trouble of going into the evidence and a trial at large.’’
But inasmuch as there were no exceptions filed to these pleas on the grounds here stated, and taking into consideration the complex character of the pleas, in that both relate to the same mining ground, we are disposed to pass this question, and decide the case upon its merits.
2. It is claimed by appellant that the judgment of dismissal in Eutter v. Shoshone Min. Go. is no bar to the present action, because the suit was dismissed for want of jurisdiction. This presents the question upon its merits as to the sufficiency of the plea. We do not understand counsel for appellee to deny the general proposition that a judgment of dismissal for 'want of jurisdiction cannot be pleaded in bar in ordinary cases of a’general character. But his contention is that the action was a peculiar one, in this: that it involved the rights of the parties under section 2326, Rev. St., in relation to suits brought to establish an adverse claim; that the plea sets up the facts that an application for patent was made for the Shoshone Lode Mining Claim by the Shoshone Mining Company; that an adverse claim was filed by Rutter and Bradley, the predecessors in interest of the present appellant; that no suit was brought in support of said adverse claim within the time required by the provisions of said section, except the suit which was brought in the United States circuit court, and dismissed for want of jurisdiction; and it is argued that the judgment of dismissal for want of jurisdiction should be treated and considered by this court as a judgment of dismissal on the ground that no action was commenced in support of the adverse claim within the time allowed by law.
[507]*507We do not think the case as presented calls for any discussion as to the construction to be given to section 2326, Rev. St., or as to what facts might be set up in an answer as a defense to the present suit. Such a discussion is foreign to the issues here raised. The judgment of dismissal was not rendered upon the ground that the complainants in the prior suit had not commenced any action within the time allowed by the statute relative to adverse claims, referred to in the plea. No such question was discussed, considered, or decided in the former suit, and no such question is raised by any averment in the bill of complaint in the present suit. No question except that of the jurisdiction of the federal court was discussed or considered by the supreme court in Mining Co. v. Rutter, 177 U. S. 505, 20 Sup. Ct. 726, 44 L. Ed. 864.
The circuit court, upon, the trial of the case, following the line of decisions of the courts in all of the Pacific Coast states where the question had been decided, held that it had jurisdiction of the case,, and tried the same upon its merits. But when the case reached the supreme court it was there expressly held that a suit brought in support of an adverse claim, under Rev. St. §§ 2325, 2326, is not a suit arising under the laws of the United States, in such a sense as to confer jurisdiction on the federal court regardless of the citizenship of the parties. This was the only point discussed or decided. The decision of the circuit court was reversed, and, there being two cases consolidated, one was ordered to be dismissed, and the other remanded to the state court. There is nothing unusual or peculiar about the case. It was dismissed for want of jurisdiction, and for no other reason. Such a judgment cannot be pleaded in bar. Being dismissed for want of jurisdiction, all of the proceedings had therein in the circuit court were null and void, and, having no validity, cannot be pleaded in bar. The matter stands as if no proceedings were ever had. It is as if no suit had ever been brought. It is a blank. No refinement of words, or ingenious argument of learned counsel, can infuse life into proceedings that are dead, null, and void. In the very nature of the case, it is impossible to sustain the proposition of appellee’s counsel that any point was decided by the court by the dismissal that would go to the merits of the action. The fact of dismissal for want of jurisdiction proves conclusively that the case was not heard on its merits.
These general principles are well settled. The authorities bearing upon the subject all declare that, where an action is dismissed on the sole ground that the court has no jurisdiction of the subject-matter of the suit or of the parties, there cannot be any adjudication of the merits, and no bar to another action for the same cause. Walden v. Bodley, 14 Pet. 156, 161, 10 L. Ed. 398; Hughes v. U. S., 4 Wall. 232, 237, 18 L. Ed. 303; Smith v. McNeal, 109 U. S. 426, 3 Sup. Ct. 319, 27 L. Ed. 986; Freem. Judgm. § 264; 2 Black, Judgm. § 713; 1 Greenl. Ev. §§ 529, 530; Roberts v. Hamilton, 56 Iowa, 683, 10 N. W. 236; Railway Co. v. Donnell, 77 Iowa, 221, 225, 42 N. W. 176; Rood v. Eslava, 17 Ala. 430; Phillips v. Quick, 68 Ill. 324.
In Hughes v. U. S., 4 Wall. 232, 237, 18 L. Ed. 303, the court, in discussing this question, said:
[508]
Free access — add to your briefcase to read the full text and ask questions with AI
HAWLEY, District Judge
(after stating the facts as above). This is a, suit to quiet plaintiff’s title (appellant herein) to a lode mining claim situated in Shoshone county, Idaho, known as and called the “Kirby Fraction.” The bill of complaint is in the usual form in actions of this character. The suit does not purport to he brought, nor is it instituted, in support of any adverse claim died in the lamí office in any patent proceeding. The bill of complaint herein shows jurisdiction of the court hy reason of diversity of citizenship of the contending parties, the jurisdictional value being alleged. To plaintiff’s bill of complaint the defendant (appellee herein) interposed a [506]*506plea, in bar,' which is set forth at length in the statement of facts. To this plea no answer or demurrer as to its sufficiency was filed. The plea was set for trial, and after argument thereon the court sustained the plea, and dismissed the suit. Hence this appeal.
It is assigned as error that "the trial court erred in sustaining the plea of respondent to complainant’s complaint, and in ordering the said complaint to be dismissed, because the said plea failed to state facts sufficient to constitute a valid defense to complainant’s complaint.”
1. It will be noticed that there are two pleas set up:- (1) The bar of the judgment in the United States court in Rutter et al. v. Shoshone Min. Co.; and (2) the pendency of the action of Shoshone Min. Co. v. Rutter et al. in the state court. No leave was asked of the court to allow double pleas. It is therefore contended by appellant that the pleas in bar should have been overruled on account of duplicity and multifariousness. The rule is well settled that but one plea can be set up in an equity suit without express leave of the court. As was said by the court in McCloskey v. Barr (C. C.) 38 Fed. 165, 168:
“It is not usual, or in conformity with proioer practice, for a defendant, without previous special leave of the court, to file several separate pleas, or to present several distinct and independent defenses, in one plea to the suit, for the reason that the defense proper for a plea is such as reduces the cause or some distinct part of it to a single point or issue; the object of the plea being to save litigants the expense and trouble of going into the evidence and a trial at large.’’
But inasmuch as there were no exceptions filed to these pleas on the grounds here stated, and taking into consideration the complex character of the pleas, in that both relate to the same mining ground, we are disposed to pass this question, and decide the case upon its merits.
2. It is claimed by appellant that the judgment of dismissal in Eutter v. Shoshone Min. Go. is no bar to the present action, because the suit was dismissed for want of jurisdiction. This presents the question upon its merits as to the sufficiency of the plea. We do not understand counsel for appellee to deny the general proposition that a judgment of dismissal for 'want of jurisdiction cannot be pleaded in bar in ordinary cases of a’general character. But his contention is that the action was a peculiar one, in this: that it involved the rights of the parties under section 2326, Rev. St., in relation to suits brought to establish an adverse claim; that the plea sets up the facts that an application for patent was made for the Shoshone Lode Mining Claim by the Shoshone Mining Company; that an adverse claim was filed by Rutter and Bradley, the predecessors in interest of the present appellant; that no suit was brought in support of said adverse claim within the time required by the provisions of said section, except the suit which was brought in the United States circuit court, and dismissed for want of jurisdiction; and it is argued that the judgment of dismissal for want of jurisdiction should be treated and considered by this court as a judgment of dismissal on the ground that no action was commenced in support of the adverse claim within the time allowed by law.
[507]*507We do not think the case as presented calls for any discussion as to the construction to be given to section 2326, Rev. St., or as to what facts might be set up in an answer as a defense to the present suit. Such a discussion is foreign to the issues here raised. The judgment of dismissal was not rendered upon the ground that the complainants in the prior suit had not commenced any action within the time allowed by the statute relative to adverse claims, referred to in the plea. No such question was discussed, considered, or decided in the former suit, and no such question is raised by any averment in the bill of complaint in the present suit. No question except that of the jurisdiction of the federal court was discussed or considered by the supreme court in Mining Co. v. Rutter, 177 U. S. 505, 20 Sup. Ct. 726, 44 L. Ed. 864.
The circuit court, upon, the trial of the case, following the line of decisions of the courts in all of the Pacific Coast states where the question had been decided, held that it had jurisdiction of the case,, and tried the same upon its merits. But when the case reached the supreme court it was there expressly held that a suit brought in support of an adverse claim, under Rev. St. §§ 2325, 2326, is not a suit arising under the laws of the United States, in such a sense as to confer jurisdiction on the federal court regardless of the citizenship of the parties. This was the only point discussed or decided. The decision of the circuit court was reversed, and, there being two cases consolidated, one was ordered to be dismissed, and the other remanded to the state court. There is nothing unusual or peculiar about the case. It was dismissed for want of jurisdiction, and for no other reason. Such a judgment cannot be pleaded in bar. Being dismissed for want of jurisdiction, all of the proceedings had therein in the circuit court were null and void, and, having no validity, cannot be pleaded in bar. The matter stands as if no proceedings were ever had. It is as if no suit had ever been brought. It is a blank. No refinement of words, or ingenious argument of learned counsel, can infuse life into proceedings that are dead, null, and void. In the very nature of the case, it is impossible to sustain the proposition of appellee’s counsel that any point was decided by the court by the dismissal that would go to the merits of the action. The fact of dismissal for want of jurisdiction proves conclusively that the case was not heard on its merits.
These general principles are well settled. The authorities bearing upon the subject all declare that, where an action is dismissed on the sole ground that the court has no jurisdiction of the subject-matter of the suit or of the parties, there cannot be any adjudication of the merits, and no bar to another action for the same cause. Walden v. Bodley, 14 Pet. 156, 161, 10 L. Ed. 398; Hughes v. U. S., 4 Wall. 232, 237, 18 L. Ed. 303; Smith v. McNeal, 109 U. S. 426, 3 Sup. Ct. 319, 27 L. Ed. 986; Freem. Judgm. § 264; 2 Black, Judgm. § 713; 1 Greenl. Ev. §§ 529, 530; Roberts v. Hamilton, 56 Iowa, 683, 10 N. W. 236; Railway Co. v. Donnell, 77 Iowa, 221, 225, 42 N. W. 176; Rood v. Eslava, 17 Ala. 430; Phillips v. Quick, 68 Ill. 324.
In Hughes v. U. S., 4 Wall. 232, 237, 18 L. Ed. 303, the court, in discussing this question, said:
[508]*508“In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point'of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits o£ the action, the judgment rendered will prove no bar to anothei suit.”
In Freem. Judgm., supra, it is said:
“There can be no doubt that the dismissal of an action for want of jurisdiction is not a judgment on the merits, and cannot prevent the plaintiff from subsequently prosecuting his action in any court authorized to entertain and determine it.”
8. What effect, if any, should be given to the plea in relation to the pendency of the action in the state court concerning the title of the Ibex and Ear by fraction lodes? Waiving all the objections to the form of the plea, and facing the question upon its merits as a plea in bar, and upon the theory, as argued by appellee, that both suits are between the same parties, and involve the same issues, we are clearly of opinion that it is wholly insufficient, and that the court erred in sustaining it. Although in former years there was considerable controversy, and much conflict of opinion, upon this point, it must now be considered as settled that the pendency of a prior suit in a state court cannot be pleaded in bar to a suit in a federal court, even between the same parties and involving the same issues. Stanton v. Embrey, 93 U. S. 548, 554, 23 L. Ed. 983; Gordon v. Gilfoil, 99 U. S. 168, 178, 25 L. Ed. 383; Latham v. Chafee (C. C.) 7 Fed. 520, 523; Sharon v. Hill (C. C.) 22 Fed. 28, 30; Beekman v. Railroad Co. (C. C.) 35 Fed. 3, 10; Pierce v. Feagans (C. C.) 39 Fed. 587, 588; Rawitzer v. Wyatt (C. C.) 40 Fed. 609, 610; Marshall v. Otto (C. C.) 59 Fed. 249, 252; Wilcox & Gibbs Guano Co. v. Phœnix Ins. Co. (C. C.) 61 Fed. 199; City of North Muskegon v. Clark, 10 C. C. A. 591, 62 Fed. 694, 698; Woodbury v. Railroad Co. (C. C.) 72 Fed. 371, 374; First Nat. Bank v. Duel Co. (C. C.) 74 Fed. 373, 374; Short v. Hepburn, 21 C. C. A. 252, 75 Fed. 113; Rodgers v. Pitt (C. C.) 96 Fed. 668, 677; Wadleigh v. Veazie, 3 Sumn. 165, Fed. Cas. No. 17,031; White v. Whitman, 1 Curt. 494, Fed. Cas. No. 17,561; Willson v. Milliken (Ky.) 44 S. W. 660, 42 L. R. A. 449. In the light of all the facts herein, it would doubtless be proper for the circuit court, as a matter of comity, in pursuance of the principles announced in Ball v. Tompkins (C. C.) 41 Fed. 486, 491; Foley v. Hartley (C. C.) 72 Fed. 570, 571; Zimmerman v. So Relle, 25 C. C. A. 518, 80 Fed. 417; Hughes v. Green, 28 C. C. A. 537, 84 Fed. 833, 835; Ryan v. Railroad Co. (C. C.) 89 Fed. 397, 408; Rodgers v. Pitt (C. C.) 96 Fed. 668, 671, — to suspend proceedings and stay its hand in the present suit until the suit in the state court is in some manner disposed of, and then proceed with the trial in the light of the results that may be reached in the state court, and the issues that may be presented herein. The decree of the circuit court is reversed, and the cause remanded for further proceedings not inconsistent with the views expressed in this opinion.