¶1At the former hearing of this ease the judgment of the lower court was affirmed without an opinion, the members of the court sitting being equally divided in opinion upon the only question in the case we regarded as requiring serious consideration, which was as-to the necessity of proof of citizenship of the successful party in the court below to sustain the judgment. We have reconsidered this question in the light of the supplemental briefs filed by the respective counsel upon the rehearing, and have also re-examined the record as to all the questions raised by the appellants. We are still of the opinion, after such examination, that the question of citizenship is the only one presented by the record worthy of serious consideration. We are also now of the opinion that the judgment of the court below must be affirmed, even if we should adopt the view that alienage of a party to an adverse suit can properly be made an issue, so that when thus raised the proceeding becomes, as to such issue, one in the nature of “inquest of office.”
¶2The suit was originally brought by Frank P. Helms, C. C. Hight, and" Henry Magne. The complaint, which was in form an action to quiet title under the statute, with the additional allegations required in an adverse suit, alleged the citizenship of the plaintiffs, who were the locators of the mining location, the right of possession to which is in question. The answer of the defendant Hankins put in issue all. the allegations of the complaint, including that of the citizenship of the plaintiffs. Subsequent to the bringing of the suit, and before trial, the plaintiffs conveyed their interests in the ground in controversy to James Howlett, Almet Kemp, and Fred Keely. Upon application to the trial court, Howlett, Kemp, and Keely were substituted as plaintiffs in the action. The question of citi*180zenship of the substituted plaintiffs does not appear, so far as the record discloses, to have been raised in the court below by any pleading, motion, or otherwise upon the trial. The judgment of the trial court quieted the title of Howlett, Kemp, and Keely in and to the mining claim in controversy, but there was no specific finding that these plaintiffs were citizens of the United States.
¶3'We think the ease falls squarely within the ruling of the supreme court of the United States in O’Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. 421, 29 L. Ed. 669. In this case the supreme court held that where the record fails to show that the question of citizenship of the plaintiffs was raised in the court below it will be considered as waived,. and cannot be raised in the appellate court for the first time. The reason given by the court for this holding is that an objection to the want of proof of citizenship of a plaintiff, if taken in the trial court, may usually be met at once with the requisite proof, and that when not made the objection will be deemed to have been waived. To the same effect is the case of Sherlock v. Leighton, 9 Wyo. 297, 63 Pac. 580, 934.
¶4The case of Manuel v. Wulff, 152 U. S. 511, 14 Sup. Ct. 651, 38 L. Ed. 532, bears upon this point. This was an adverse case brought by Wulff contesting the right of Manuel to obtain a patent to certain mining ground, in which he asserted right of possession to be in himself. It appeared that Manuel, at the time suit was brought, was not a citizen, but he became ^such pending the trial and before judgment was entered in the case. The ’ trial court rendered judgment against Manuel upon the ground that he was not a citizen at the time he obtained title to the mining claim in dispute by conveyance from the locators, and at the time the suit was commenced, holding that a conveyance to an alien operated as an abandonment ■ of the claim thus conveyed. The supreme court reversed the case, holding that the incapacity of Manuel, by reason of alienage, to take and hold the mining claim was open to question by the government only, and that, although the objection of the alienage of Manuel was properly made, “this was as in right and on behalf of the government, and naturalization removed the infirmity before judgment was rendered.” In this case the original Joeator of the claim who conveyed to Manuel was a citizen, but in *181McKinley Min. Co. v. Alaska Min. Co., 183 U. S. 572, 22 Sup. Ct. 87, 46 L. Ed. 331, Mr. Justice McKenna said: “The meaning of Manuel v. Wuljf is that the location by an alien and all the rights following from such location are voidable, not void, and are free from attack by anyone except the government.” If the location was not void because of the alienage of the locators, assuming such to have been the case, no distinction is to be made, therefore, between this case and Manuel v. Wulff, and the substituted plaintiffs would be entitled to the patent of the government, assuming the validity of the location and their citizenship to be established or conceded. As we have said, no question having been made as to the citizenship of the substituted plaintiffs in the court below, so far as the record discloses, therefore the rule laid down by O’Reilly v. Campbellapplies.
¶5The judgment is affirmed.