LEARNED HAND, District Judge.
Upon the point of jurisdiction we think the court below was right. Roberts v. Lewis, 144 U. S. 654, 12 Sup. Ct. 781, 36 L. Ed. 579, decided that a denial of the allegation of citizenship raised the question of jurisdiction over the subject-matter, and that, where the record shows no proof on the issue, the court has no power to proceed. The proof under the pleadings here at bar did not show the exact ground of jurisdiction over the subject-matter which was alleged, but it did show a controversy, between an alien and a citizen of the state of Pennsylvania, over which no one questions that the District Court for the Eastern District of Pennsylvania would have had jurisdiction,'
[ 1 ] The first question is whether in such a case the District Court for the Eastern District of New York had jurisdiction. It is well settled by a long line of authorities that where jurisdiction over the subject-matter depends upon diverse citizenship, and the parties are in fact citizens of different states, the objection that the suit is brought in a district where neither is an inhabitant does not survive general appearance. Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401. That is to say, the limitations imposed by Congress as to the place of trial are only for the convenience of the defendant, and do not involve the jurisdiction of the court at all, properly speaking. The difference of opinion which at one time existed in the case of removed causes (Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; Re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164; Re Tobin, 214 U. S. 506, 29 Sup. Ct. 702, 53 L. Ed. 1061), never applied to those of original jurisdiction.
When the plaintiff is an alien, the same jurisdiction over the subject-matter exists as when there is diversity of citizenship. Re Tobin, supra, would be a complete answer after appearance in a suit by an alien to the objection that the action was brought in the wrong court, were it not that Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392, throws some doubt upon whether the decision in Ex parte Tobin, supra, may not have turned upon a question of procedure. Certainly it is true that in Ex parte Harding, supra, the court said that it would not usually consider such questions upon application for mandamus. We believe, nevertheless, that the decisions in Ex parte Tobin, supra, and Ex parte Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203, when made, were meant to be upon the merits, though, as Judge Lewis showed in Sagara v. Chicago, etc., Ry. (C. C.) 189 Fed. 220, the question must remain open to some doubt.
However, there is no conceivable reason why a different rule should apply to the case of an alien suing a citizen out of the proper district, from that which governs a citizen so suing, and we do not understand that the defendant so claims.
[2] The real question, therefore, is whether the defendant has lost the point by appearance and pleading to the merits. As we have said, where the record requires proof of diversity of citizenship, it is enough that issue is taken on the allegations, and that the record contains no proof. Roberts v. Lewis, supra. Rut we think that the rule is different where the objection goes only to the proper place of trial. Cer[550]*550tainly, where the defect appears upon the face of the complaint, a defendant waives the objection by appearing and pleading to the merits, even though he tries especially to reserve the point by joining a demurrer to the court’s jurisdiction over him personally. Western Loan Co. v. Butte & Boston Mining, Co., 210 U. S. 368, 28 Sup. Ct. 720; 52 L. Ed. 1101. And this is no less true in actions at law in states whose practice reserves to defendants the right to do exactly that thing. In this respect federal courts do not follow the state practice. Similarly, when, although the complaint on its face shows jurisdiction, the defendant has been, served out of the place of its residence, he may not couple a demurrer to the court’s jurisdiction over him personally with a plea to the merits. St. Louis & San Francisco Ry. Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 Ed. 659.
It is true that the demurrer to the jurisdiction in the last case would seem to have been bad anyway, as it raised only the facts stated on the face of the complaint; but the decision went upon the broader ground that the two pleas could not be coupled, though that was allowed by the state practice. These cases finally dispose of the position that the state statutes are to control on the effect of a general appearance and on the right to couple pleas in abatement with pleas to the merits. They show that Roberts v. Lewis, supra, decided no more than was well settled law before; i. e., that the substantial jurisdiction of the District Court must appear in the record, and that when an allegation has been traversed it does not constitute proof. The unfortunate ambiguity arising from the use of the word “jurisdiction” has, we think, been the reason for supposing that the decision in fact went any further than this.
The case at bar presents only this difference from St. Louis & San Francisco v. McBride, supra, and Western Loan Co. v. Boston & Butte Mining Co., supra, that the defendant in those cases was apprised of all the facts when he coupled together his plea to the merits and his plea to the jurisdiction, while here he was not. We do not think it necessary to decide that the defendant should miscarry for taking the plaintiff at his word, and pleading to the merits upon the faith of an allegation which, if true, would have entitled him to sue in the court which he chose. We do not, therefore, wish to be understood as deciding, where the plaintiff alleges residence in the district of suit, and the defendant traverses the allegation only by denying any information about it, that if, during the proceedings, it appears that the plaintiff cannot prove his allegation, the defendant’s general appearance has bound him.
[3] All wé wish to lay down is that, when once the truth appears, then at least the defendant must choose between his plea in abatement and his plea to the merits. Assuming that it is not bad to couple the two positions before the defendant is informed, there can be no justification in allowing him to proceed thereafter in the alternative. The rule which forbids him to do this when advised from the outset must surely forbid him to continue with the same option after the option is once presented. We therefore believe that to proceed with a general plea to the merits, when once the facts were out, was entirely within [551]*551the rule laid clown in the two cases cited, regardless of whether the defendant could or could not reserve the point in any way merely by a traverse to the allegation.
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LEARNED HAND, District Judge.
Upon the point of jurisdiction we think the court below was right. Roberts v. Lewis, 144 U. S. 654, 12 Sup. Ct. 781, 36 L. Ed. 579, decided that a denial of the allegation of citizenship raised the question of jurisdiction over the subject-matter, and that, where the record shows no proof on the issue, the court has no power to proceed. The proof under the pleadings here at bar did not show the exact ground of jurisdiction over the subject-matter which was alleged, but it did show a controversy, between an alien and a citizen of the state of Pennsylvania, over which no one questions that the District Court for the Eastern District of Pennsylvania would have had jurisdiction,'
[ 1 ] The first question is whether in such a case the District Court for the Eastern District of New York had jurisdiction. It is well settled by a long line of authorities that where jurisdiction over the subject-matter depends upon diverse citizenship, and the parties are in fact citizens of different states, the objection that the suit is brought in a district where neither is an inhabitant does not survive general appearance. Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401. That is to say, the limitations imposed by Congress as to the place of trial are only for the convenience of the defendant, and do not involve the jurisdiction of the court at all, properly speaking. The difference of opinion which at one time existed in the case of removed causes (Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; Re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164; Re Tobin, 214 U. S. 506, 29 Sup. Ct. 702, 53 L. Ed. 1061), never applied to those of original jurisdiction.
When the plaintiff is an alien, the same jurisdiction over the subject-matter exists as when there is diversity of citizenship. Re Tobin, supra, would be a complete answer after appearance in a suit by an alien to the objection that the action was brought in the wrong court, were it not that Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392, throws some doubt upon whether the decision in Ex parte Tobin, supra, may not have turned upon a question of procedure. Certainly it is true that in Ex parte Harding, supra, the court said that it would not usually consider such questions upon application for mandamus. We believe, nevertheless, that the decisions in Ex parte Tobin, supra, and Ex parte Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203, when made, were meant to be upon the merits, though, as Judge Lewis showed in Sagara v. Chicago, etc., Ry. (C. C.) 189 Fed. 220, the question must remain open to some doubt.
However, there is no conceivable reason why a different rule should apply to the case of an alien suing a citizen out of the proper district, from that which governs a citizen so suing, and we do not understand that the defendant so claims.
[2] The real question, therefore, is whether the defendant has lost the point by appearance and pleading to the merits. As we have said, where the record requires proof of diversity of citizenship, it is enough that issue is taken on the allegations, and that the record contains no proof. Roberts v. Lewis, supra. Rut we think that the rule is different where the objection goes only to the proper place of trial. Cer[550]*550tainly, where the defect appears upon the face of the complaint, a defendant waives the objection by appearing and pleading to the merits, even though he tries especially to reserve the point by joining a demurrer to the court’s jurisdiction over him personally. Western Loan Co. v. Butte & Boston Mining, Co., 210 U. S. 368, 28 Sup. Ct. 720; 52 L. Ed. 1101. And this is no less true in actions at law in states whose practice reserves to defendants the right to do exactly that thing. In this respect federal courts do not follow the state practice. Similarly, when, although the complaint on its face shows jurisdiction, the defendant has been, served out of the place of its residence, he may not couple a demurrer to the court’s jurisdiction over him personally with a plea to the merits. St. Louis & San Francisco Ry. Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 Ed. 659.
It is true that the demurrer to the jurisdiction in the last case would seem to have been bad anyway, as it raised only the facts stated on the face of the complaint; but the decision went upon the broader ground that the two pleas could not be coupled, though that was allowed by the state practice. These cases finally dispose of the position that the state statutes are to control on the effect of a general appearance and on the right to couple pleas in abatement with pleas to the merits. They show that Roberts v. Lewis, supra, decided no more than was well settled law before; i. e., that the substantial jurisdiction of the District Court must appear in the record, and that when an allegation has been traversed it does not constitute proof. The unfortunate ambiguity arising from the use of the word “jurisdiction” has, we think, been the reason for supposing that the decision in fact went any further than this.
The case at bar presents only this difference from St. Louis & San Francisco v. McBride, supra, and Western Loan Co. v. Boston & Butte Mining Co., supra, that the defendant in those cases was apprised of all the facts when he coupled together his plea to the merits and his plea to the jurisdiction, while here he was not. We do not think it necessary to decide that the defendant should miscarry for taking the plaintiff at his word, and pleading to the merits upon the faith of an allegation which, if true, would have entitled him to sue in the court which he chose. We do not, therefore, wish to be understood as deciding, where the plaintiff alleges residence in the district of suit, and the defendant traverses the allegation only by denying any information about it, that if, during the proceedings, it appears that the plaintiff cannot prove his allegation, the defendant’s general appearance has bound him.
[3] All wé wish to lay down is that, when once the truth appears, then at least the defendant must choose between his plea in abatement and his plea to the merits. Assuming that it is not bad to couple the two positions before the defendant is informed, there can be no justification in allowing him to proceed thereafter in the alternative. The rule which forbids him to do this when advised from the outset must surely forbid him to continue with the same option after the option is once presented. We therefore believe that to proceed with a general plea to the merits, when once the facts were out, was entirely within [551]*551the rule laid clown in the two cases cited, regardless of whether the defendant could or could not reserve the point in any way merely by a traverse to the allegation.
The proper course, therefore, for the defendant, was to ask leave to withdraw its appearance and to plead specially, a practice well recognized in other situations raising the same question. Hohorst v. Hamburg American Co. (C. C.) 38 Fed. 273 (reversed on another point in Re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211); Jenkins v. York Cliff Improvement Co. (C. C.) 110 Fed. 807; Hagstoz v. Mut. L. Ins. Co. (C. C.) 179 Fed. 569. Such leave would have been by no means a matter of course. It would have rested in the discretion of the court. U. S. v. Armejo, 131 U. S. lxxxii Append., 18 L. Ed. 247; Re Ulrich, 3 Ben. 355, Fed. Cas. No. 14,327. In its consideration the court would have had to inquire how far the defendant knew the truth, or had already been put upon inquiry, before the trial. It is, of course, possible that, had such a practice been adopted, the court in the exercise of its discretion would have concluded not to allow the general appearance to be withdrawn; and in any event the issue was one in which the plaintiff had the right to he heard.
In Leonard v. Merchants’ Coal Co., 162 Fed. 885, 89 C. C. A. 575, this court affirmed the ruling of a referee who in siniilar circumstances dismissed the complaint. The opinion certainly assumes that the New York Code controlled, and that a plea in abatement like this, could stand along with a plea to the_ merits. St. Louis & San Francisco Ry. v. McBride, supra, was apparently not brought to the court’s attention, however, and Western Loan Co. v. Boston & Butte, supra, had' not been decided. These cases are, of course, controlling, even as against a former decision of this court. There was, besides, a feature of the case which distinguishes it as a decision from that now at bar. When the fact appeared that -the plaintiff lived in Brooklyn, the referee took testimony to see whether the defendant had not known the facts at the time of appearing, and found against him on that issue. This was exactly the issue which the plaintiff here had the right, but never the opportunity, to try, and adopted, though a little informally, the only permissible practice. It is true that, after the referee had decided this point against him, the plaintiff in that case asked leave to present further proof upon the issue, which the referee refused to grant upon the ground that the issue would be irrelevant,- a reason which, under the decision we now make, was erroneous. Yet the mere decision, taken narrowly, was correct, in that the referee had once passed upon the issue, and was not bound to reconsider it, even though the grounds for his refusal to do so were not tenable.
[4] We therefore conclude that the decision of the District Court was correct upon the pleadings as they stood, and that as the defendant did not adopt the only allowable course, but continued to press his plea to the merits with his plea to the forum, he lost his option. No doubt this is a somewhat rigid application of the rule, but no more we. think than is required by the two decisions upon which we rely. The plea is at best very technical, and in the case at bar has nothing upon the merits to commend it. A defendant may justly complain of being [552]*552taken out of his domicile for the trial of a cause, hut his right depends only upon his own convenience, and there is no reason why he should be allowed to reserve such a point while he continues to contest the actual merits of the controversy, else we have what this case itself presents, the'expense of a trial and appeal, with corresponding delay, in the end all turning upon whether the defendant has been sued in the proper place. • Doubtless this result is unavoidable if the defect goes to the very grant of power to' the court itself, since a federal court has no general jurisdiction to determine disputes which do not come within the Constitution and the statutes; but, as we have shown, no such question here arises, and it is of consequence that procedure should not admit of the disposition of causes wholly independently of their merits, when the law does not inevitably involve that unfortunate result.
[5] The next question is of Terowsky’s relation to the defendant: Was he an independent contractor? The only case in which any Pennsylvania court appears to have passed upon this matter is unfortunately a decision of the Superior Court, and therefore not binding upon us, though it is quite in point. Mingak v. Vesta Coal Co., 51 Pa. Super. Ct. 584. The other cases all concern the payment of wages of the mine laborers, except Welsh v. Charles Parrish & Co., 148 Pa. 599, 24 Atl. 86, and Welsh v. Lehigh & Wilkesbarre Coal Co. (Pa.) 5 Atl. 48. In these cases the facts are not very clear, except that the job which was being done under written contract was to drive an air shaft to a colliery, to which it had not yet reached. The defendants had no control over it, except general supervision to see that it was done satisfactorily. This was not part of the business of mining. Such a work might well be regarded as done under an independent contract.
In the case at bar the necessary conclusion of the defendant’s theory is that Terowsky, as well as the plaintiff, was not an employé of the company, and that they owed him none of the duties of a master to a servant. The company is therefore not in the business of coal mining at all, in so far as it uses such miners, but is only engaged in letting out contracts to independent contractors, to whom they owe as little duty as to those firms which set up the pumps in their mines. Thus what is confessedly only a means of speeding up the miners and their helpers becomes conveniently an incidental means of stripping from them the protection of the statute. The laborers, under this contention, are to have recourse as an employer only ,to one of their own, without financial responsibility or control of any capital; the miner is to take his chances in the mine without the right to a safe place to work, or any other protection except as an invited person. This misses the whole purpose of such statutes, which are meant to protect those who are at an economic disadvantage.
It is true that the statute uses the word “employed,” but it must be understood with reference to the purpose of the act, and where all the conditions of the relation require protection, protection ought to be given. It is absurd to class such a miner as an independent contractor in the only sense in which that phrase is here relevant. He has no capital, no financial responsibility. He is himself as dependent up[553]*553on the conditions of his employment as the company fixes them as are his helpers. By him alone is carried on the company’s only business; he is their “hand,” if any one is. Because of the method of his pay one should not class him as though he came to do an adjunctive work, not the business of the company, something whose conduct and management they had not undertaken.
Such statutes are partial; they upset the freedom of contract, and for ulterior purposes put the two contesting sides at unequal advantage; they should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.
The other exceptions do not require consideration, and the judgment is affirmed, with costs.