Statement by Mr. Justice BREWER:
On the 14th of November, 1891, defendant in error commenced a suit against B. A. Schunk, in the circuit court of the United States for the district of Nebraska, on several notes, some of which, amounting to $530. 09, were past due, while the others, amounting to $1,664.04, were not then due. The prayer of the petition was in these words:
Under the provisions of the state statutes, an attachment was issued against the property of the defendant. The section authorizing this is in these words:
Subsequent sections prescribe the proceedings to be pursued, the regularity of which in this case is not challenged. A demurrer to the petition, on the ground, among others, that no cause of action was stated, was overruled, a motion to discharge the attachment denied, and judgment rendered on May 21, 1892, for the sum of $2,347.50, together with $100 as an attorney's fee. To reverse this judgment the defendant below, as plaintiff in error, has sued out a writ of error from this court.
Mr. Justice Field, dissenting.
W. J. Lamb and Ricketts & Wilson, for plaintiff in error.
[147 U.S. 500, 503] John L. Webster, for defendant in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
In this case the only question that can be considered is, under section 5 of the court of appeals act of March 3, 1891, (26 St. p. 826,) that of the jurisdiction of the circuit court. McLish v. Roff, 141 U.S. 661 , 12 Sup. Ct. Rep. 118.
The errors assigned are-First, in overruling the demurrer; second, in holding that the court had jurisdiction to seize and sequester the property to secure the payment of a debt not yet due; third, in holding that it had jurisdiction to issue an attachment upon a demand not yet due; and, fourth, in allowing an attorney's fee. Of course, the latter matter presents no question of jurisdiction.
With respect to the other assignments, the plaintiff was a corporation created by and a citizen of the state of Ohio, and [147 U.S. 500, 504] the defendant a citizen of Nebraska. The jurisdiction of the circuit court was, therefore, invoked on the ground of diverse citizenship. By the act of March 3, 1887, (24 St. p. 552,) as corrected by the act of August 13, 1888, (25 St. p. 433,) jurisdiction is given to the circuit courts over controversies 'between citizens of different states, in which the matter in dispute exceeds' the sum or value of $2,000. The claim of the plaintiff was to recover $2,194.13 and interest. The right to recover this, or any part thereof, was challenged by the demurrer.
In Gaines v. Fuentes, 92 U.S. 10 , this court said: 'A controversy was involved, in the sense of the statute, whenever any property or claim of the parties capable of pecuniary estimation was the subject of litigation, and was presented by the pleadings for judicial determination.' Hilton v. Dickinson, 108 U.S. 165 , 2 Sup. Ct. Rep. 424.
Within the letter of the statute there was, therefore, a controversy between citizens of different states, in which the matter in dispute was over the sum or value of $2,000.
It matters not that, by the showing in the petition, part of this sum was not yet due. Plaintiff insisted that it had a right to recover all. That was its claim, and the claim was disputed by the defendant. Suppose there were no statute in Nebraska like that referred to, and the plaintiff filed a petition exactly like the one before us, excepting that no attachment was asked for, and the right to recover anything was challenged by demurrer, would not the matter in dispute be the amount claimed in the petition? Although there might be a perfect defense to the suit for at least the amount not yet due, yet the fact of a defense, and a good defense, too, would not affect the question as to what was the amount in dispute. Suppose an action were brought on a non-negotiable note for $2, 500, the consideration for which was fully stated in the petition, and which was a sale of lottery tickets, or any other matter distinctly prohibited by statute, can there be a doubt that the circuit court would have jurisdiction? There would be presented a claim to recover the $2,500; and, [147 U.S. 500, 505] whether that claim was sustainable or not, that would be the real sum in dispute. In short, the fact of a valid defense to a cause of action, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine what is the matter in dispute; for who can say in advance that that defense will be presented by the defendant, or, if presented, sustained by the court? We do not mean that a claim, evidently fictitious, and alleged simply to create a jurisdictional amount, is sufficient to give jurisdiction. In Bowman v. Railway Co., 115 U.S. 611 , 6 Sup. Ct. Rep. 192, the damages as originally stated in the declaration were $1,200. By amendment they were raised to $10,000; but it being evident that the increase was simply to give this court jurisdiction on error, and not because there was really a claim for any such damages, the case was dismissed for want of jurisdiction. The authorities on this question are collected in the opinion of Chief Justice Waite; and it may be laid down as a general proposition that no mere pretense as to the amount in dispute will avail to create jurisdiction. But here there was no pretense. The plaintiff in evident good faith, and relying upon the express language of a statute, asserted a right to recover for $2,000; and that its claim was not merely specious is shown by the fact that after a contest it did recover a judgment for the full amount that it claimed. A case much in point is that of Upton v. McLaughlin, 105 U.S. 640 , 644. That was a suit brought by an assignee in bankruptcy more than two years after the cause of action accrued, and it was claimed that the trial court had no jurisdiction, because of a provision of section 5057 of the Revised Statutes of the United States, that 'no suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy, and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.' But it was held that the court did have jurisdiction, and this, notwithstanding sections 55 and 57 of the Code of Civil Procedure of Wyoming, the territory in which that litigation took place, authorized [147 U.S. 500, 506] a defendant to demur to the petition when it appeared upon its face either that the court had no jurisdiction, or that the petition did not state facts sufficient to constitute a cause of action, and also provided that these objections were not waived by not taking them by either demurrer or answer. Speaking for the court, Mr. Justice Blatchford said: 'It is contended that a petition which shows upon its face that the cause of action is barred by a statute of limitation is a petition which does not state facts sufficient to constitute a cause of action; and that that objection, though not taken by demurrer or answer, may be taken at any time. But we are of opinion that the statutory provisions referred to cannot properly be construed as allowing the defense of a bar by a statute of limitation to be raised for the first time in an appellate court, even though the petition might have been demurred to as showing on its face that the cause of action is so barred, and thus as not stating facts sufficient to constitute a cause of action.' In other words, it was held that although there was a perfect defense apparent upon the face of the petition, yet the court had jurisdiction, i. e. the right to hear and determine; and further, in that case, that the defense was not available when suggested for the first time in the appellate court. So here the circuit court had jurisdiction, because the amount claimed was over $2,000; and although it appeared upon the face of the petition that a part of the claim was not yet due, still the court had jurisdiction,-the right to hear and determine whether this matter constituted a good defense to any part of the amount claimed.
But it is said that the plaintiff, in a federal court, cannot avail himself of the right given by a state statute to attach for a claim not yet due; that state statutes can confer no jurisdiction on the federal courts; and that, therefore, the circuit court had no jurisdiction to issue the attachment in this case. Even if it were conceded that such contention were well founded, (and we express no opinion in that matter,) the result would not be, as claimed, that the circuit court was ousted of all jurisdiction. It would be simply an instance in [147 U.S. 500, 507] which a court having jurisdiction gave to a party greater relief than he was entitled to. Surely, the court, the matter in dispute being over $2, 000, and therefore a controversy within its jurisdiction, has a right to hear and determine, in the exercise of jurisdiction, whether the plaintiff was entitled to this extraordinary relief. If it be conceded that it erred in granting such relief, it would be simply a matter of error, and not one of jurisdiction.
But was it error? Section 915, Rev. St., provides that, 'in common- law causes in the circuit and district courts, the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the state in which such court is held for the courts thereof; and such circuit or district courts may, from time to time, by general rules, adopt such state laws as may be in force in the states where they are held in relation to attachments and other process: provided, that similar preliminary affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the party seeking such attachment or other remedy.'
It is sufficient to say that this section of the statute makes it clear that a question was presented worthy at least of the consideration of the circuit court, and whose determination, even though erroneous, was not sufficient to oust the court of jurisdiction.
Unquestionably, the circuit court had jurisdiction; and if the defendant sought to have any matter of error considered, it should have taken the case to the circuit court of appeals. Judgment affirmed.
Mr. Justice FIELD dissents.