David Josiah Brewer

“ Is there anything other than a matter of erroneous ruling upon the merits? Could it be held that the court had no jurisdiction, no right to hear and determine the controversy between the parties? So, here, whether there was or was not a statute in force in the Indian Territory providing that an action shuld survive in case of death, and whether upon the facts stated in the complaint the plaintiffs had cause of action against the defendant, were questions entering into the merits of the controversy, and not matters affecting the jurisdiction of the court. ”

“ The contention of plaintiff in error is that the jurisdiction is not founded only on the matter of diverse citizenship, but that it is an action based upon a statute of the United States, and to enforce a right given solely by such statute, and is therefore one which must be brought in the district of which the defendant was an inhabitant. Its contention goes further than this. It insists that under a proper construction of the United States statutes there was no cause of action existing in favor of the plaintiffs. ”