23 Barb. 591 | N.Y. Sup. Ct. | 1857
A receiver or other party commencing a suit in this court under any special authority, must duly allege his authority in his complaint, and in a traversable form; (Gillet, receiver, v. Fairchild, 4 Denio, 80; White, receiver, v. Joy, 3 Kern. 83 ;) and if issue be taken upon such allegation, it must be proved on the trial, as much as any other traversable fact. It was necessary therefore for the plaintiff in this action, to state in his complaint that he had been been duly appointed receiver, and as the proceedings on the trial assumed that such fact had been duly put in issue, he was bound to make due proof thereof.
I. The first point made by the defendant’s counsel is, that the plaintiff did not prove his own appointment as such receiver. It is a fundamental principle that all courts and judicial officers must acquire jurisdiction before they can make any binding decision, or do any valid act. The principle is no less applicable to this court than it is to all inferior courts or magistrates. And the question of jurisdiction is at all times open to inquiry and investigation whenever and wherever any judicial act or determination is set up or sought to be enforced. (Borden v. Fitch, 15 John. 121. Mills v. Martin, 19 id. 33. Elliot et al. v. Piersol et al., 1 Peters, 328, 340.) The question whether this court ever acquired jurisdiction to appoint the plaintiff receiver of the property and assets of the Grenesee Mutual Insurance Companyis distinctly raised and presented for our decision, and we cannot decline passing upon it. The jurisdiction is claimed and was exercised under section 36 of chapter 8, title 4, part 3, page 463 of vol. 2 of the revised statutes, which is as follows: “ Whenever a judgment at law or a decree in equity shall be obtained
In Blooms. Burdick, (1 Hill, 141,) Judge Bronson says: “ In every form in which the question has arisen, it has been held that a statute authority by which a man may be deprived of his estate must be strictly pursued;” and in Thatcher v. Powell, (6 Wheat. 119,) Chief Justice Marshall says, “ that a person or public officer with power to divest another of his property, must pursue with precision the course prescribed by law, or his acts will be invalidand in 7 Wend. 148 ; 13 id. 465; 20 id. 241; 2 Coms. 464, the same doctrine is asserted. The remedy under this section, 36, is summary and of serious consequences. It involves the virtual dissolution of the corporation proceeded against, and the loss of its franchises. It is not like a creditor's bill, a proceeding in behalf of the creditor, for
The subsequent application in the same matter, and the order of Judge Selden of the 30th of May, 1853, to amend such petition, does not cure the defect. It is merely adding another nullity to the prior nullity. (9 John. 241) 190. 15 Wend. 310. 4 Cowen, 504.) When this court has acquired jurisdiction, it may amend any process or proceeding, to retain it and carry out and effectuate its object in furtherance of justice. But it cannot make a void proceeding valid by an amendment in the same proceeding or matter, and I take it to be a fundamental rule that where there is an absence of jurisdiction, the defect ■ cannot be supplied by amendment or supplemental proceedings, so as to make the void proceedings valid from the beginning. (18 Wend. 675. 4 John. 309. 2 id. 190. 13 How. 353.) This court is a court of general jurisdiction, and every intendment is in favor of its jurisdiction. (9 John. 437. Foot v. Stevens, 17 Wend. 483.) Yet it must proceed according to the forms of law, as much as any other court or officer, and can exercise no power over life, liberty, or property, except by due process. When it has acquired jurisdiction of the person and subject matter, all its errors must be corrected by appeal
II. But assuming that the appointment of the plaintiff was valid, and was duly proved, it is next objected that the assessment was irregular in various particulars. These objections to the assessment, I think untenable. It was made under the sanction of the court, and if there was any injustice, inequality or irregularity in respect to it, the remedy of the parties affected thereby, was by motion to amend, rectify or modify the assessment. This class of objections, I think cannot be raised on the trial, more than can be irregularities in the ordinary proceedings of a cause before issue or trial. (2 Hill, 267.) But this does not apply to the notice required to be given by the 10th section of the act, before the commencement of a suit against any defaulting member. By this section the directors are to settle and determine “ the sums to be paid by the several members thereof, as their respective proportions of any loss, and publish the same in such manner as they shall see fit, or as by their bylaws shall have been prescribed.” The act thus makes a notice necessary before the corporation can sue, but leaves it discretionary with the directors to prescribe the manner of the notice. The directors, by their by-laws, prescribed that notice of assessments should be given by the secretary, by publication in two newspapers printed in the county of Genesee, for three weeks successively, the last publication to be thirty days before the day fixed for assessment. This by-law merely fixes the place and time of publication, but does not prescribe the form of the notice. This is left, therefore, to be determined by a construe
It seems to me that the notice published, as set forth in the case, does not answer the object, intent and spirit of the requirement respecting it in the charter. I think it defective in two particulars. First, it was premature. It was first published on the 16th of June, 1852. At this time no assessment had been made. The assessment was not completed till several months after that time. All that had been done at that date was the simple ascertainment of the rate per cent for making the assessment. The assessment was not complete and consummated till it was ascertained, fixed and determined by carrying out upon the extension book the amount which each member was to pay. The notice, to be of any practical use whatever; tobe anything else than a mere mockery; should state the amount which each member is to pay. That is clearly what is intended in the charter by requiring notice to be given before suit. The section should have a rational construction—one beneficial to the members—not one that makes it entirely nugatory. The notice published in this case is entirely insufficient and defective. It gives no .sort of information to the members. No one could tell from it what sum he.was required to pay. To hold the members bound to pay upon such a notice, or be subject to a suit and to-judgment upon the whole premium note, would, I think, be highly unjust, as well as a gross perversion of the section in question. The objection, too, that the plaintiff was not entitled to recover interest on the amount of the premium note, I think, was well taken. The amount of the premium note was not money due. The right to recover for the whole amount of the note is based upon a default to pay an assessment of $6.10. To allow a recovery of interest in such cases would create an inequality of payment among the members. Those who paid their assessments without suit could not be compelled to pay interest on their deposit notes, and none of the members are liable to pay more than their deposit notes until the liability for a re-assessment arises under section 11 of the act, under which all liable to contribute to a common loss are bound to com
T. R Strong, J., and Welles, J., reserved their opinions on the first point, and concurred with Justice Smith in all the residue of the above opinion.
Hew trial 'granted; costs to abide the event.
T. R. Strong, Welles and Smith, Justices.]