WARD, Circuit Judge.
This is a writ of error taken by the defendant, a corporation of the state of Pennsylvania, to a judgment for $19,-081.04 assessed against it by a jury as upon a default, as damages for the death of George Kever, caused by its negligence, when employed by it in Schuylkill county, Pa., in favor of his widow, the plaintiff, and [535]*535his six infant children. A bitter contest was carried on between the parties for three years, the successive steps of which it will not be necessary to consider.
April 14, 1915, the summons issued. May 22, 1916, the trial began, continued for six days, and ended in the disagreement of the jury. The plaintiff having sworn at the trial that her husband was a naturalized citizen, the defendant’s attorney telegraphed to the defendant' in Potts-ville, Schuylkill county, to investigate, and received a reply from its claim agent that Kever had taken out first papers June 7, 1902, but had never been naturalized.
August 22, 1916, on defendant’s motion, it was permitted to withdraw its general appearance and answer and file a plea in abatement to the jurisdiction of the court, on the ground that the plaintiff, being an alien, could sue the defendant, an inhabitant of the state of Pennsylvania, only in the District Court of the United States of the district in which it resided, viz. in the Eastern district of Pennsylvania. January 17, 1917, the court overruled the plea; it having been shown that George Kever had been duly naturalized in Schuylkill county, Pa., June 7, 1902, no final papers being required of him under section 2167, Rev. Slat. U. S.
May 4, 1917, an order was entered, on defendant’s motion, reinstating the answer which it had been given leave to withdraw and placing the case on the calendar for trial. April 13, 1918, the court entered an order vacating the order of May 4, 1917, and directing judgment absolute in favor of the plaintiff upon the defendant’s plea to the jurisdiction, and directing the United States marshal to summon a jury to assess the plaintiff’s damages.
The trial judge believed that the defendant’s agents in Pennsylvania must have known from the records there that Kever had been naturalized June 7, 1902, and that they misled the defendant’s attorney here to,whom no bad faith is imputed, on that point. He said:
“It does not seem, therefore, that upon the present call of the calendar the case should be dismissed for lack of prosecution, when the defendant has, through the plaintiff’s inability to prosecute, been allowed to present a defense upon the merits, which it had voluntarily abandoned and refused to urge, while the defendant could insist that the plaintiff’s decedent was not a citizen. In other words, the defendant refused to, accept the jurisdiction of this court so long as ground of objection thereto arose, but, upon realizing the plaintiff’s lack of ability to proceed against it, it now accepts the jurisdiction of the court for the sake of asking that the action be dismissed.
“This would certainly work an unjust result, and the defendant has no purely legal right to insist upon the opening of his default and his restoration to a position from which an unjust result would proceed. Upon the circumstances, it must bo held that the order reinstating the defendant’s answer should be vacated, and the plaintiff given judgment, upon the defendant’s plea to jurisdiction, which admitted, in effect, liability, when presented as it was in this case.
“Under these circumstances the plaintiff’s application for judgment should now be granted, and a jury called to assess the plaintiff’s damage, in order that the amount might be entered in said judgment.”
The learned judge seems to have thought that the defendant had an election either to stand on the question of the jurisdiction of its person or to defend on the merits, and, that if, it insisted on the one position it [536]*536waived the other. We shall examine this question presently. Let us consider the foregoing steps in the case in succession.
The order of August 22, 1916, permitting the defendant to withdraw its general appearance and answer and file a plea in abatement, was within the discretion of the court. If, when the motion was made, the defendant knew that the plaintiff was a citizen, the motion should not have been granted. We said on this subject in Lehigh Valley Railroad Co. v. Washko, 231 Fed. 42, 46, 145 C. C. A. 230, 234:
“In the Yensavage Case the majority of the court called attention to the proposition that, when facts appeared which indicated that the plaintiff had improperly brought the action in that District Court, the court might inquire whether the defendant, when it appeared, joined issue, or went to trial, did have knowledge or information sufficient to form a belief that the action was being prosecuted in the wrong court, on which distinct issue plaintiff had the right to be heard if he so desired. Indeed, the court might properly suspend the trial to enable plaintiff to produce witnesses on this issue. This is undoubtedly correct; if defendant with such knowledge or information takes no step'to put a stop to the further prosecution of the suit, he must be deemed to have waived his right. Moreover, this distinct issue is one which the judge himself may hear and determine at the trial, as he would on affidavits if it were raised before the trial. It not infrequently happens that plaintiff avers that he is a resident of a particular district, whereupon the defendant on motion shows conclusively by affidavits that the averment is untrue and dismissal follows.
“In the Yensavage opinion, however, there is a phrase which should not be broadly interpreted. It is said that the disposition of the motion to withdraw the general appearance for the cause stated would ‘rest in the discretion of the court’ If this be taken as meaning that'the trial judge, taking the evidence, exercises his judgment thereon, it is correct; but this court is not to be understood as holding that there is any further ‘discretion’ to be exercised. If it appears by the proof that at the time defendant appeared and prosecuted its defense on the merits it had neither knowledge nor information sufficient to form a belief that plaintiff’s averments of citizenship and residence were untrue, it is asserting a right which it had never waived, and denial by the court of the relief to which that right entitled it would be reversible error.”
The order of May 4, 1917, was right, because the only judgment that could have been entered on this plea in abatement was that the defendant should answer over, the common-law judgment of respondeat ouster. Andrews’ Stephens on Pleading, §■ 97. The plea very properly concluded as follows: •
“Wherefore defendant prays that said plea be sustained, that this cause of action be dismissed, and, if the same be overruled, the defendant have leave to answer over upon the merits.”
The order of April 13, 1918, directing judgment absolute in the plaintiff’s favor upon the plea to the jurisdiction, was improper. It was an interlocutory judgment, quod recuperet. No such judgment could be entered on that plea. The defendant was entitled to answer over. Its answer, formerly withdrawn, had been reinstated, and could only be got rid of by motion for judgment on it as frivolous under section 537 of the New York Code of Civil Procedure, or by motion to strike it out as sham under section 538.
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WARD, Circuit Judge.
This is a writ of error taken by the defendant, a corporation of the state of Pennsylvania, to a judgment for $19,-081.04 assessed against it by a jury as upon a default, as damages for the death of George Kever, caused by its negligence, when employed by it in Schuylkill county, Pa., in favor of his widow, the plaintiff, and [535]*535his six infant children. A bitter contest was carried on between the parties for three years, the successive steps of which it will not be necessary to consider.
April 14, 1915, the summons issued. May 22, 1916, the trial began, continued for six days, and ended in the disagreement of the jury. The plaintiff having sworn at the trial that her husband was a naturalized citizen, the defendant’s attorney telegraphed to the defendant' in Potts-ville, Schuylkill county, to investigate, and received a reply from its claim agent that Kever had taken out first papers June 7, 1902, but had never been naturalized.
August 22, 1916, on defendant’s motion, it was permitted to withdraw its general appearance and answer and file a plea in abatement to the jurisdiction of the court, on the ground that the plaintiff, being an alien, could sue the defendant, an inhabitant of the state of Pennsylvania, only in the District Court of the United States of the district in which it resided, viz. in the Eastern district of Pennsylvania. January 17, 1917, the court overruled the plea; it having been shown that George Kever had been duly naturalized in Schuylkill county, Pa., June 7, 1902, no final papers being required of him under section 2167, Rev. Slat. U. S.
May 4, 1917, an order was entered, on defendant’s motion, reinstating the answer which it had been given leave to withdraw and placing the case on the calendar for trial. April 13, 1918, the court entered an order vacating the order of May 4, 1917, and directing judgment absolute in favor of the plaintiff upon the defendant’s plea to the jurisdiction, and directing the United States marshal to summon a jury to assess the plaintiff’s damages.
The trial judge believed that the defendant’s agents in Pennsylvania must have known from the records there that Kever had been naturalized June 7, 1902, and that they misled the defendant’s attorney here to,whom no bad faith is imputed, on that point. He said:
“It does not seem, therefore, that upon the present call of the calendar the case should be dismissed for lack of prosecution, when the defendant has, through the plaintiff’s inability to prosecute, been allowed to present a defense upon the merits, which it had voluntarily abandoned and refused to urge, while the defendant could insist that the plaintiff’s decedent was not a citizen. In other words, the defendant refused to, accept the jurisdiction of this court so long as ground of objection thereto arose, but, upon realizing the plaintiff’s lack of ability to proceed against it, it now accepts the jurisdiction of the court for the sake of asking that the action be dismissed.
“This would certainly work an unjust result, and the defendant has no purely legal right to insist upon the opening of his default and his restoration to a position from which an unjust result would proceed. Upon the circumstances, it must bo held that the order reinstating the defendant’s answer should be vacated, and the plaintiff given judgment, upon the defendant’s plea to jurisdiction, which admitted, in effect, liability, when presented as it was in this case.
“Under these circumstances the plaintiff’s application for judgment should now be granted, and a jury called to assess the plaintiff’s damage, in order that the amount might be entered in said judgment.”
The learned judge seems to have thought that the defendant had an election either to stand on the question of the jurisdiction of its person or to defend on the merits, and, that if, it insisted on the one position it [536]*536waived the other. We shall examine this question presently. Let us consider the foregoing steps in the case in succession.
The order of August 22, 1916, permitting the defendant to withdraw its general appearance and answer and file a plea in abatement, was within the discretion of the court. If, when the motion was made, the defendant knew that the plaintiff was a citizen, the motion should not have been granted. We said on this subject in Lehigh Valley Railroad Co. v. Washko, 231 Fed. 42, 46, 145 C. C. A. 230, 234:
“In the Yensavage Case the majority of the court called attention to the proposition that, when facts appeared which indicated that the plaintiff had improperly brought the action in that District Court, the court might inquire whether the defendant, when it appeared, joined issue, or went to trial, did have knowledge or information sufficient to form a belief that the action was being prosecuted in the wrong court, on which distinct issue plaintiff had the right to be heard if he so desired. Indeed, the court might properly suspend the trial to enable plaintiff to produce witnesses on this issue. This is undoubtedly correct; if defendant with such knowledge or information takes no step'to put a stop to the further prosecution of the suit, he must be deemed to have waived his right. Moreover, this distinct issue is one which the judge himself may hear and determine at the trial, as he would on affidavits if it were raised before the trial. It not infrequently happens that plaintiff avers that he is a resident of a particular district, whereupon the defendant on motion shows conclusively by affidavits that the averment is untrue and dismissal follows.
“In the Yensavage opinion, however, there is a phrase which should not be broadly interpreted. It is said that the disposition of the motion to withdraw the general appearance for the cause stated would ‘rest in the discretion of the court’ If this be taken as meaning that'the trial judge, taking the evidence, exercises his judgment thereon, it is correct; but this court is not to be understood as holding that there is any further ‘discretion’ to be exercised. If it appears by the proof that at the time defendant appeared and prosecuted its defense on the merits it had neither knowledge nor information sufficient to form a belief that plaintiff’s averments of citizenship and residence were untrue, it is asserting a right which it had never waived, and denial by the court of the relief to which that right entitled it would be reversible error.”
The order of May 4, 1917, was right, because the only judgment that could have been entered on this plea in abatement was that the defendant should answer over, the common-law judgment of respondeat ouster. Andrews’ Stephens on Pleading, §■ 97. The plea very properly concluded as follows: •
“Wherefore defendant prays that said plea be sustained, that this cause of action be dismissed, and, if the same be overruled, the defendant have leave to answer over upon the merits.”
The order of April 13, 1918, directing judgment absolute in the plaintiff’s favor upon the plea to the jurisdiction, was improper. It was an interlocutory judgment, quod recuperet. No such judgment could be entered on that plea. The defendant was entitled to answer over. Its answer, formerly withdrawn, had been reinstated, and could only be got rid of by motion for judgment on it as frivolous under section 537 of the New York Code of Civil Procedure, or by motion to strike it out as sham under section 538. It was good both in form and substance, and neither frivolous nor sham.
* 'A- defendant who pleads on the merits waives his right to file a plea [537]*537in abatement; but he does not, by filing a plea in abatement,, waive his right to plead on the merits, and he cannot be deprived of this right by the court. Upon incongruities of pleading in this connection Mr. Justice Daniel said in Sheppard v. Graves, 14 How. 505, 510 (14 L. Ed. 518):
“The incongruities in practice, which mark the progress of this case in the court below, are much to bo regretted, as having a tendency to confound the proceedings in courts of justice: i>roceedings calculated to define and distinguish the lights of parties litigant, and to conduct the courts to a correct adjudication upon’those rights; proceedings indeed founded upon, and as it were sanctified by, an experience of their usefulness, and even of their necessity. Thus it has ever been received as a canon of pleading that matters which appertain solely to the jurisdiction of a court, or to the disabilities of the suitor, should never be blended with questions which enter essentially into the subject-matter of the controversy, and that all defenses involving inquiries into that subject-matter imply, nay admit, the competency of the parties to institute such inquiries, and the authority of the court to adjudicate upon them. Hence it is that pleas to the jurisdiction or in abatement, are deemed inconsistent with those which appertain to the merits of a cause; they are tried upon different views as to the relations of the parties, and result in different conclusions. A striking illustration of the mischief's flowing from the departure from the rule just stated is seen in the practice attempted in the case before us. If it could be imagined that the plea to the jurisdiction a.nd the plea to the merits could be regularly committed to the jury at the same time, the verdict might involve the following absurdities: Should the finding be for the plaintiff, the judgment would, as to the defendant, be upon one; issue that of respondeat ouster, and upon the other that he pay the debt, as to the justice of which he was commanded to answer over. Should the finding he for the defendant, the judgment upon one issue must he that the debt was not due, and upon the other that the court called upon so to pronounce had no authority over the case. So that in either aspect there must, under this proceeding, be made and determined one issue which is incongruous with and immaterial to the other. A practice thus fraught with confusion and perplexity, and one endangering the rights of suitors, it is exceedingly desirable should be reformed, and we are aware of no standard of reformation and improvement moro safe and more convenient than that which is supplied by the time-tested rules of the common law; and by one of those rules, believed to be without an exception, it is ordained that objections to the jurisdiction of the court, or to the competency of the parties, are matters pleadable in abatement only, and that if, after such matters relied on, a defense be interposed in bar and going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial, and are waived.”
[2, 3] If a defendant asks the court for leave to withdraw his appearance and answer and file a plea in abatement, having had knowledge of the defect he proposes to plead before he appeared and answered, the court may or may not give leave. If the court knows that he had such knowledge, and that the motion is made in bad faith, it should certainly refuse the leave. Now in this case there was nothing to show any bad faith on defendant’s part when the court permitted the general appearance and answer to be withdrawn; but after the trial of the plea in abatement the court did know as much as it ever learned on the subject of the defendant’s bad faith. Still there was nothing then that could be done but to permit the defendant to answer over and proceed to trial. It was error to enter the judgment absolute on the defendant’s plea to the jurisdiction.
[4] The plaintiff in error has asked us, in case the cause comes back for a new trial, to decide whether the service of process upon the agent [538]*538designated by it under the law of the state of New York (general Corporation Raw [Consolidated Laws, c. 23] § 16) was good. The contention is that, it being a foreign corporation engaged in interstate commerce, service on the designated agent here is good only in case of suits for causes of action arising in New York, whereas the cause of action sued on arose in Pennsylvania. Judge Learned Hand has decided to the contrary in the District Court for the Southern District in the case of Smolik v. Philadelphia & Reading Ry. Co., 222 Fed. 148, asy has the Court of Appeals of the state of New York in Bagdon v.Philadelphia & Reading Ry. Co., 217 N. Y. 432, 111 N. E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389. We concur in this conclusion.
The judgment is reversed.