This ease is here upon writ of error and certificate presenting the question of jurisdiction of the district court. It comes under § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215], and presents to this court the question of jurisdiction only. The suit was begun on November 5th, 1904, in the United States circuit court for the district of Connecticut. On May 24th, 1905, a substituted complaint was filed. The object of the suit was to recover for alleged breaches of a certain indemnity contract set forth in the complaint. In this substituted complaint, as well as in the original complaint, the allegation as to diverse citizenship is that plaintiff is a citizen of the state of Michigan, and defendants are citizens of the state of Connecticut. On August 3d, 1907, an answer was filed, in which it was admitted that the defendants were citizens of the state of Connecticut, and it was averred that the defendants had no knowledge or information as to the citizenship of the plaintiff, and would 'leave him to proof thereof.' On April 27th, 1911, the defendants filed a motion to dismiss the suit for want of jurisdiction. On October 5th, 1911, defendants filed another motion to dismiss for want of jurisdiction. On October 6th, 1911, the plaintiff filed a motion to strike the last-mentioned motion from the files. Both of the motions to dismiss were upon the ground that the plaintiff was not a citizen of the state of Michigan, but was a citizen of the state of Connecticut. The motion of the plaintiff to strike the last-mentioned motion from the files was upon the ground, among others, that the motion was an improper and irregular method of raising the question of jurisdiction, and because that matter was already in issue under the allegations of complaint and answer.
After the taking effect of the Judicial Code on January 1st, 1912, the case was transferred to the district court of the United States for the district of Connecticut. On August 26th, 1912, a jury was impaneled, and the case came on for trial. The court directed that the trial should proceed upon the question of jurisdiction. Thereupon the parties proceeded to offer testimony upon the question of plaintiff's residence. At the conclusion of this testimony, the court found that the plaintiff and defendants were citizens of the state of Connecticut at the time the action was begun, and accordingly dismissed the suit upon the sole ground of want of jurisdiction, and ordered the jury discharged from further consideration of the case.
The act of 1875 [18 Stat. at L. 472, chap. 137], § 5, now § 37 of the Judicial Code [36 Stat. at L. 1098, chap. 231, Comp. Stat. 1913, § 1019], provides:
'If, in any suit commenced in a district court, or removed from a state court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit, or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.'