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ience of the court and the parties is obvious. We cannot believe that Congress intended to say that the parties shall not, as heretofore, submit their cases to the court unless they do so by a written stipulation, but that it was the intention to enact that if parties who consent to waive a jury desire to secure the right to a review in the Supreme Court of any question of law arising in the trial, they must first file their written stipulation," etc.

The case stood for trial by a jury upon the question of damages, as well as upon the question of liability. The defendants, previous to the date fixed for trial, had taken no steps to procure an auditor for the purposes of a jury trial. Had a request been made to take the case from the jury, or for a continuance, on the ground that the case was of such a nature as to require the services of an auditor to put it in shape for a jury trial, the court might well have refused such a request on the ground that it had not been made seasonably. Had the plaintiff been informed that it was then the intention of the defendants to claim a jury trial on the question of damages, it might well have resisted the motion for the appointment of an auditor, and have insisted that, if a jury trial was to be had, it should be before the jury then present for the trial of the case which the plaintiff was ready to try. As a practical matter, we think that if the defendants desired both a hearing before an auditor and a trial before a jury on the question of damages they should have stated that desire seasonably; and that, failing to state that desire, and, on the contrary, stating merely a desire to be heard, both the court and opposing counsel were entitled to assume that the request for an auditor was made by the defendants not to prepare for a jury trial, but to prepare the case in the most convenient way for its disposal by the court.

Counsel for the plaintiffs in error contends that a reference to an auditor contemplates a regular trial in the future. We think that this may be conceded; also that his report is only prima facie evidence to be used upon a subsequent trial before the court or jury. Stone v. Sargent, 129 Mass. 503, 512. He relies, also, upon Fenno v. Primrose, 119 Fed. 801, 56 C. C. A. 313, a decision of this court, to support the proposition that an auditor is an officer appointed to prepare the case for a jury. He argues, therefore, that a reference to an auditor cannot be inconsistent with or a substitute for a jury trial. The case of Fenno v. Primrose did not decide, however, that an auditor can be appointed only for the purpose of preparing a case for a jury trial. Reference to an auditor may serve the convenience of counsel, and may be regarded by counsel quite as desirable when the case is ultimately to be decided by the court as when it is ultimately to be decided by a jury. As certain kinds of questions can be more conveniently tried to the court than to a jury, so certain questions may be more conveniently tried before an auditor than before the court. Counsel familiar with the practice in equity before a master, whereby the evidence may be fully prepared for final hearing by the court may desire to secure in a law trial the same advantage. We are of the opinion that the request for an auditor cannot be regarded as in any way indicating a desire for a jury trial.

It was not until after the plaintiffs in error were apprised of the auditor's findings, and not until after a motion had been made for a

BROCK V. FULLER LUMBER CO.

confirmation of the auditor's report and for the issue of execution, that they indicated any desire for a jury trial. Default was made November 28, 1904. Four months elapsed before the making of a claim for a jury trial. Had the auditor's report been satisfactory to the defendants, we think they might well have contended that a claim at that time by the plaintiff for a jury trial would have been too late, and we think that no act of the defendants which preceded their claim. for a jury trial gave them any greater right than the plaintiff. The default was at the November term, 1904. No claim for a jury trial was made during that term. It is well settled, as we have seen, that parties may waive a jury trial without stipulation in writing by submitting the case to the court for hearing, even when the right to a jury trial is secured to them by statute without affirmative request. In this case the defendants' right to a jury trial was conditional upon their expressly claiming it. Where a party suffers a case to stand for the assessment of damages by the court for so long a period as four months, during which the court has taken steps towards the assessment of damages, we think it is within the discretion of the trial court to decide that the request for a jury trial is too late.

Though the statute itself fixes no limit of time within which a request for a jury trial must be made under section 961, it does not follow that the time is unlimited. In Re Grant (D. C.) 143 Fed: 661, it was held that the right of review or appeal for which the statute fixes no time limit is, nevertheless, not unlimited, but requires of a person seeking a review the duty of proceeding with some degree of diligence, and the failure to so proceed must be construed as an abandonment of the appeal. We do not decide, of course, that a request for an auditor is in itself a waiver of jury trial; nor do we decide that the mere failure to request a jury trial before asking for an auditor is necessarily a waiver of jury trial, for it is undoubtedly true that the appointment of an auditor is in itself not more suggestive of the final assessment of damages by the court than by the jury. But we do decide that the request for a jury trial under section 961 must be made seasonably, and cannot be delayed indefinitely, and that parties should not be permitted by their action to make a practical abandonment of a claim for a jury trial, and, after an unfavorable result before. an auditor, base a request for a jury trial upon an afterthought. The learned judge who heard the case in the Circuit Court found that a jury trial had not been seasonably requested. He had before him all the facts as shown by the record, among them the following: The case came on for a jury trial without any previous request by the defendants for an auditor to prepare for that trial; the jury was present for the trial of the question of damages as well as that of liability, yet no request was then made for a jury trial; the request for an auditor was preceded by no intimation that a jury trial was desired, or that the auditor was desired to prepare the case for a jury, counsel stating merely that he "would like to be heard on the question of damages"; no request was made for a jury trial at any time during the term at which default was made, nor until four months after dedefault, and after the defendants had learned that the auditor's report was unfavorable and had cause to be apprehensive that judgment

might speedily follow against them. Considering all the circumstances shown by the record, we are of the opinion that it cannot be said that the finding that a jury trial was not seasonably requested was er

roneous.

The judgment of the Circuit Court is affirmed, and the defendant in error recovers costs in this court.

COLE et al. v. CARSON.*

(Circuit Court of Appeals, Eighth Circuit. April 17, 1907.)

No. 2,450.

COURTS-FEDERAL COURTS-ADOPTION OF STATE PRACTICE-PLEADING-JubiSDICTION-DIVERSITY OF CITIZENSHIP-DENIAL BY ANSWER.

Rev. St. Mo. 1899, § 596 [Ann. St. 1906, p. 622], provides that the only plea on the part of the defendant is a demurrer or answer. Section 604' declares that the answer shall contain, first, a general or special denial; and second, a statement of any new matter constituting a defense or counterclaim. Section 605 authorizes a defendant to set forth, by answer, as many defenses and counterclaims as he may have. Held, that since the enactment of the conformity act (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), it is not necessary for a defendant in a suit in a federal court sitting in Missouri to raise the question of jurisdiction by plea in abatement, but that an answer containing a general denial, etc., was effective to put in issue the allegations of diverse citizenship.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 921. Conformity of practice in common law actions to that of state courts, see note to O'Connell v. Reed, 5 C. C. A. 594; Mederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]

In Error to the Circuit Court of the United States for the Southwestern Division of the District of Missouri.

M. R. Lively and W. R. Robertson, for plaintiffs in error.
Hiram W. Currey and George V. Farris, for defendant in error.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS, Circuit Judge. The trustee in bankruptcy of the Missouri Development Company, incorporated under the laws of the state of Indiana, brought his action in the court below against the defendants, charging them with the conversion of certain property belonging to the bankrupt. It was alleged in the petition that the trustee and the bankrupt were citizens of the state of Indiana and that the defendants were citizens of the state of Missouri. The lat ter appeared to the action and filed an answer, denying each and every allegation of the petition, and pleaded some affirmative defenses, The case was tried to a jury resulting in a verdict for plaintiff. Many errors were assigned by the defendants, who are prosecuting this writ of error; but in the view we take of the question of jurisdiction these need not be considered. Although issue was joined on the allegation of diversity of citizenship of the parties, no proof was produced tending to establish the affirmative of the issue so tendered, and defendants now urge the want of such proof as ground for reversal of the judgment.

*Rehearing denied June 11, 1907.

COLE V. CARSON..

Prior to the enactment of the act of June, 1872 (Rev. St. § 914, [C. S. Comp. St. 1901, p. 684]), known as the "Conformity Act," if the requisite citizenship of the parties was properly alleged in the petition, it was deemed admitted by pleading to the merits without having first filed a plea in abatement denying it. Sheppard v. Graves, 14 How. 505, 14 L. Ed. 518; Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579. But since the assimilation of the practice in the national courts to that in the state courts by the conformity act, in those states where the answer takes the place of all pleas at common law, and where it must contain a general or specific denial of each material allegation of the petition controverted by the defendant, the common-law requirement of pleading matters in abatement of the action before taking issue on the merits has become obsolete, and a denial in the answer of all the allegations of the petition puts each and all of them in issue, whether they be matters in abatement or bar. Roberts v. Lewis, supra. Yocum v. Parker, 66 C. C. A. 80, 130 Fed. 770; Roberts v. Langenbach, 56 C. C. A. 253, 119 Fed. 349.

The determination of the question now under consideration, therefore, depends upon whether the Code of Missouri, whence this case came, requires matters of abatement to be pleaded as a part of an answer to the merits, or whether the rule of the common law on the subject is applicable to them. The Code provides that "the only plea on the part of the defendant is either a demurrer or an answer' section 596, Rev. St. Mo. 1899 [Ann. St. 1906, p. 622]); that "the answer of the defendant shall contain first a general or special denial of each material allegation of the petition controverted by the defendant or any knowledge or information thereof sufficient to form a belief; second, a statement of any new matter constituting a defense or counter-claim in ordinary and concise language and without repetition" (section 604, supra); that "the defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both" (section 605, supra). The foregoing provisions of the Missouri Code, in our opinion, clearly indicate that everything constituting a defense to an action, whether in abatement or to the merits. must, unless the defect appears on the face of the petition, be presented in an answer, which is the only pleading other than a demurrer, recognized by the statute.

But it is contended that the Supreme Court of Missouri has held otherwise, and our attention is called to the following cases: Northrup V. Mississippi Valley Ins. Co., 47 Mo. 435, 4 Am. Rep. 337; Rippstein v. St. Louis Mut. Life Ins. Co., 57 Mo. 86; Rogers v. Marsh. 73 Mo. 64; Baier v. Berberich, 85 Mo. 50; Paddock v. Somes, 102 Mo. 226, 14 S. W. 746, 10 L. R. A. 254, and others in support of that contention. These have been critically examined, and, while in some of them, noticeably the Rippstein Case, countenance is given to plaintiff's view, others are disposed of on the ground that certain specific objections not apparent on the face of the petition must be taken by an

swer or be held waived.

153 FEDERAL REPORter.

But whatever sanction may have been given to that contention in the Rippstein and other cases appears to have been distinctly repudiated in Little v. Harrington, 71 Mo. 390, wherein the Supreme Court, by Chief Justice Sherwood, considered the question, and after adverting to the statutory provisions supra says as follows:

# *

"It is evident from these statutory provisions that only one answer is contemplated, and this to contain whatever defense or defenses the defendant may have, thus dispensing with the common-law rule that a plea in bar waives all dilatory pleas, or pleas not going to the merits. in abatement is as much a defense to the pending actions as matter in bar, and to say that the defendant may reserve the latter until a trial shall have been Matter had upon the issues, in regard to the former would interpolate what is not in the statute; would be inconsistent with its plain and simple requirements."

To the same effect are Byler v. Jones, 79 Mo. 261; Young Men's Christian Association v. Dubach, 82 Mo. 475; Cohn v. Lehman, 93 Mo. 574, 6 S. W. 267; State ex inf. v. Vallins, 140 Mo. 523, 41 S. W. 887.

In the last-mentioned case, which was an information in the nature of quo warranto, the following language is employed:

"The assertion is made by counsel for respondents, in substance, that inasmuch as proceedings in quo warranto are governed here by the common law that, in consequence of this, it was not admissible to plead at the same time to the jurisdiction and also to the merits, and the intimation is given that there are other matters yet held in reserve and to be brought forward in resistance to the information. On this it is enough to say that, although the present proceeding is in effect as it was at common law, yet at the same time it is but a civil action, as we have often declared, and, being such, there is but one answer allowable in such cases, and that must contain all the defenses the party has, no matter what their nature, whether in abatement or in bar."

From the foregoing there can be no doubt as to the present attitude of the Supreme Court of Missouri on the question under consideration, whatever it may have originally been. The statutes so construed by that court are substantially the same as provisions found in the Code of Civil Procedure of Nebraska, which were under consideration by the Supreme Court in Roberts v. Lewis, supra. Mr. Justice Gray, in delivering the opinion in that case, makes use of the following lan

guage:

"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," etc.

This court in Yocum v. Parker, supra, had under consideration the question we are now considering, and reached the conclusion which we now reach. We might well have disposed of the present case by reversing it on the authority of that one; but, as counsel have earnestly argued the question anew in the light of Missouri statutes and authorities, we have carefully considered it again with the result indicated. Our attention is called to Adams v. Shirk, 55 C. C. A. 25, 117 Fed. 801, and Every Evening Printing Co. v. Butler, 144 Fed.

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