This case is before us upon certified questions relating to the jurisdiction of the circuit court.
The suit is in equity, and the plaintiff is a citizen of Michigan. The defendants are George Folsom, a citizen of California, and the Board of Trustees of the Ohio State University.
The object of the bill was to effect the partition of certain lands claimed by the plaintiff and the defendant Folsom as tenants in common, but held adversely by the defendant board of trustees. The plaintiff sought to have the title determined as preliminary to partition.
The board of trustees appeared and demurred to the bill as not making a case entitling the plaintiff to any relief against it.
The demurrer was sustained, and the bill dismissed,-the decree reciting that neither the plaintiff nor the defendant Folsom had any title or interest in the lands described in the bill, or in the rents or profits thereof, but that the same belonged to the Board of Trustees of the Ohio State University. Folsom entered his appearance in circuit court, but made no defense, nor was any decree taken by default against him.
From that decree the plaintiff and the defendant Folsom prayed and perfected an appeal.
It is certified that the jurisdiction of the circuit court was wholly dependent upon diversity of citizenship, and that neither defendant objected in the circuit court that the case was not of equitable cognizance, or that the court, as a Federal court, was without jurisdiction to determine it. But in the circuit court of appeals Folsom insisted, among other things, that the circuit court 'had no cognizance of the cause because the requisite diversity of citizenship does not exist, the Board of Trustees of the Ohio State University not being a corporation of Ohio within the jurisdictional rule imputing to the members of that board citizenship of the state under whose law it is organized.'
The circuit court of appeals propound the following questions:
1. Does the bill sufficiently aver that the Board of Trustees of Ohio State University is a corporation of the state of Ohio, or does it aver facts which, in legal intendment, constitute said body a corporation of the state of Ohio, within the rule that a suit by or against a corporation in a court of the United States is conclusively presumed, for the purpose of litigation, to be one by or against citizens of the state creating the corporation?
2. If the said board of trustees be not such a corporation as is required by the jurisdictional rule referred to, may this suit be maintained against it as 'The Board of Trustees of the Ohio State University' without bringing the persons constituting the board before the court as defendants? 3. If the said board may sue or be sued in a Federal court by the name of 'The Board of Trustees of the Ohio State University,' although not constituting a corporation of the state of Ohio, within the jurisdictional rule referred to in the first question, do the facts stated on the face of the bill sufficiently show that the persons composing said board of trustees are citizens of Ohio, or should the court take notice of the law creating said board of trustees, and of other laws of Ohio defining the qualification of such trustees, and by legal intendments find that the persons constituting said board when this bill was filed were in fact citizens of Ohio, and that the requisite diversity of citizenship existed to give jurisdiction to the circuit court?