the fact that the beneficiary whom the representative acts for may be a citizen of the same state, affects the question.
5. Void Judgment—Reversal on Point Not Raised.
A judgment shown by the record to be void will be reversed on appeal, though neither party raises the question.
APPEAL from district court, Cass county; Hon. William B. McConnell, Judge.
Taylor Crum, for appellant; Thomas & Davis, for respondent.
The authorities cited by counsel upon the points considered by the court are all mentioned in the following opinion:
Corliss, C. J. The pretended judgment in this case must be reversed, because the district court had lost jurisdiction of the case at the time the judgment was rendered. The action was pending in the territorial district court at the time of the admission of this state into the Union. Under the enabling act, commonly designated as the "Omnibus Bill," the United States district and circuit courts established by that act are made the successors of the territorial district courts as to all cases pending in such courts at the time of the admission; provided, the case is one of which the federal court might have had jurisdiction, under the laws of the United States, had such court existed at the time of the commencement of the action. § 23.
The mere fact that the federal court might have had jurisdiction is the test. The case, however, is not transferred by force of the statute merely, but only on written request of one of the parties to the action, filed in the proper court. Such a request was filed, in this case, in the state district court, by the defendant and respondent, before judgment was rendered; and accompanying this request was the respondent's affidavit, showing that the plaintiff, both at the time of the commencement of the action and at the time of filing the request, was a citizen of the state of Minnesota, and that the defendant was, when the action was commenced, a citizen of the territory of Dakota, and was, at the time the request was made, a citizen of the state of North Dakota. These facts made the federal circuit court the successor of the territorial district court; and the request, when
