with the opinion of this court, and that a writ of procedendo issue accordingly.

"It is further considered by the court that the appellee pay the costs of this appeal, taxed at $227.70, and that execution issue therefor."

This writ of error was thereupon brought.

Mr. Charles A. Clark and Mr. George E. Clarke for plaintiff in error.

Mr. E. B. Evans, with whom Mr. H. C. Evans was on the brief, for defendants in error.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

By its judgment the Supreme Court of Iowa reversed the decree of the trial court and remanded the cause "for further proceedings in harmony with the opinion of this court."

We have heretofore held that a judgment couched in such terms is not final in such a sense as to sustain a writ of error from this court. Haseltine v. Bank, 183 U. S. 130. It was there ruled that the face of the judgment is the test of its finality, and that this court cannot be called on to inquire whether, when a cause is sent back, the defeated party might or might not make a better case.

It is true that in Iowa the Supreme Court hears equity cases on appeal de novo, and the successful party is entitled to a decree in that court, if he moves for it, First National Bank v. Baker, 60 Iowa, 132; but in the present case no such decree was applied for or rendered. Nor did the Supreme Court direct the court below to dismiss plaintiff's petition, or in terms direct the specific decree to be entered.

And it has been repeatedly held by that court that when a case triable de novo is remanded for judgment in the court below, the parties may be permitted to introduce material evi

dence discovered since the original trial, and may amend the pleadings for the purpose of setting up matters materially affecting the merits, subsequently occurring. Sanxey v. Iowa City Glass Company, 68 Iowa, 542; Adams County v. Railroad Company, 44 Iowa, 335; Shorthill v. Ferguson, 47 Iowa, 284; Jones v. Clark, 31 Iowa, 497. In the latter case, the court below, the District Court, refused to permit amendments, holding, "as a matter of law, that when a chancery case has been appealed to the Supreme Court, and has been there heard upon its merits, and is remanded to the District Court, with instructions as set forth in the procedendo in this cause, the District Court has no power to grant leave to amend." But the Supreme Court reversed the District Court, and held that that court might, "at any time, in furtherance of justice, and on such terms as may be proper, permit a party to amend any pleadings or proceedings. Rev. § 2977."

Doubtless the conclusions arrived at by the state Supreme Court, and expressed in its opinion, furnish the grounds on which the court below must proceed, when the case goes to a decree there, if no change in pleadings or proof takes place, but we cannot say what action might nevertheless be taken, and as no decree was entered in the Supreme Court, and no specific instruction was given to the court below, we think the writ of error cannot be maintained. Assuming, without deciding, that a Federal question was so raised as otherwise to have justified the exercise of our jurisdiction, we can but repeat what we said in Haseltine's case: "The plaintiffs in the case under consideration could have secured an immediate review by this court, if the court as a part of its judgment of reversal had ordered the Circuit Court to dismiss their petition, when, under Mower v. Fletcher, they might have sued out a writ of error at once."

Writ of error dismissed.

W. L. WELLS COMPANY v. GASTONIA COTTON MANUFACTURING COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH

CIRCUIT.

No. 237. Argued April 28, 1905.-Decided May 8, 1905.

The charter of a corporation in Mississippi provided that the incorporators "are hereby created a body politic and corporate," and also that "as soon as ten thousand dollars of stock is subscribed and paid for said corporation shall have power to commence business." The ten thousand dollars was not paid in, but the corporation after doing business commenced an action against a citizen of another State in the Circuit Court of the United States for North Carolina for goods sold; defendant denied any knowledge or information sufficient to form a belief as to plaintiff's corporate capacity. Plaintiff recovered in the Circuit Court but the Circuit Court of Appeals held that owing to the failure to pay in the amount specified in the charter, plaintiff was not a corporation and a citizen of Mississippi, and that the jurisdiction of the Circuit Court did not affirmatively appear. Held, error:

That the denial of defendant was sufficient under the practice of North Carolina to put the question of plaintiff's corporate capacity to sue in issue. That for purposes of suing and being sued in the courts of the United States the members of a corporation are to be deemed citizens of the State by whose laws it was created.

That plaintiff became in law a corporation when its charter was approved and the Great Seal of the State affixed thereto, and as such was entitled to sue in the United States Circuit Court as a citizen of Mississippi, and the subscription and payment of the required amount of capital stock was not such a condition precedent that the corporation did not exist until it was paid. If the organization of the company as a corporation was tainted with fraud it was for the State by appropriate proceedings to annul the charter.

THE plaintiff, the W. L. Wells Company, seeks in this action to recover a balance alleged to be due from the defendant, the Gastonia Cotton Manufacturing Company, on account of certain sales of cotton in the years 1899 and 1900.

The complaint averred that the plaintiff and defendant were, respectively, created and duly organized as corporations—the former, under the laws of Mississippi; the latter, under the laws of North Carolina.

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The defendant admitted that it was a corporation, duly organized under the laws of North Carolina and a citizen and resident of that State, but averred that it had "no knowledge or information sufficient to form a belief as to the truth of the allegation contained in the first section of the complaint, to wit, that the plaintiff is a corporation organized under the laws of the State of Mississippi and a citizen and resident of that State, and, therefore, it denies the said allegation." The other paragraphs of the answer put in issue the allegations of the complaint touching the plaintiff's claim against the defendant.

There was another action in the same court brought by the W. L. Wells Company against the Avon Mills on account of transactions like those involved in the other case.

By consent of the parties and pursuant to an order of court the two cases were consolidated and tried together. In answer to questions propounded by the court the jury found that the W. L. Wells Company was, as alleged in the complaint, a corporation and a citizen and resident of Mississippi and entitled to recover the sum of $39,313.88. A judgment was rendered for that amount against the Gastonia Cotton Manufac turing Company-the Circuit Court holding, upon a review of the evidence in connection with the findings of the jury, that the W. L. Wells Company was a corporation of Mississippi, and as such entitled to invoke the jurisdiction of that court as against the defendant corporation of North Carolina. 118 Fed. Rep. 190.

The case was then carried to the Circuit Court of Appeals which adjudged that the plaintiff had failed to establish the allegations of the complaint as to its corporate capacity, and, therefore, was not entitled to sue in the Circuit Court in its alleged corporate name. Without considering the merits of the case, that court reversed the judgment for want of jurisdiction in the Circuit Court and the cause was remanded with liberty to the plaintiff, if it was so advised, to amend the complaint by inserting the individual names of those constituting the company in whose name the action was brought, which

198 U. S.

Argument for Petitioner.

being done a new trial should be granted; and if the plaintiff declined to amend, then the case was to be dismissed without prejudice. 128 Fed. Rep. 369. Subsequently, the present writ of certiorari was granted.

Mr. Joseph Hirsh and Mr. Charles W. Tillett, with whom Mr. Murray F. Smith was on the brief, for petitioner:

Plaintiff was created a corporation by the terms of its charter, and its right to sue was thereby expressly authorized. Perkins v. Sanders, 56 Mississippi, 733, 739; St. J. & Iowa R. R. Co. v. Shambaugh, 166 Missouri, 567; Hammond v. Strauss, 53 Maryland, 1.

Plaintiff was at least a corporation de facto. Tulare Irrigation District v. Shepard, 185 U. S. 1, 13.

The corporate existence of plaintiff cannot be assailed, even if the capital stock was not paid before the commencement of business. 1 Clark & Marshall, Corp., 231, 257, citing Stokes v. Findlay, 4 McCrary, 205; Bibb v. Hall, 101 Alabama, 79; Canfield v. Gregory, 66 Connecticut, 917; Union Water Co. v. Kean, 52 N. J. Eq. 111. See also Bank v. Stone et al., 38 Michigan, 779; Att'y Gen'l v. Simonton, 78 N. Car. 57; Hackensack Water Co. v. De Kay, 36 N. J. Eq. 548; Eaton v. Aspinwall, 19 N. Y. 121; Rice v. Rock Island &c. R. R. Co., 21 Illinois, 93; Burns v. Beck, 10 S. E. Rep. 121; McCandless v. Inland Co., 42 S. E. Rep. 449; First Nat. Bank v. Almy, 117 Massachusetts, 476; Fargason v. Oxford Mercantile Co., 78 Mississippi, 65; Oregonian R. R. Co. v. Oregon Ry. &c. Co., 23 Fed. Rep. 232; Armour v. Bement, 123 Fed. Rep. 56.

A failure to pay for the capital stock of a corporation cannot be made the basis of defense by a debtor of said corporation, and the question can only be raised by the State. Cases supra and Smith v. Meridian & Ala. R. R. Co., 6 S. & M. 179; Frost v. Frostberg Coal Co., 24 How. 278; Smith v. Sheely, 12 Wall. 358; Kayser v. Bremen, 16 Missouri, 88.

The failure to issue capital stock is immaterial. Close v. Glenwood Cemetery, 107 U. S. 385.