4 N.Y. 375 | NY | 1850
Lead Opinion
The only objection to the declaration, which is important to be considered, is, that it does not state facts necessary to give the justice jurisdiction of the person of the defendant. It may be assumed as a principle, to which it is believed there is no exception, that a court having authority to issue process, acquires jurisdiction of the person of the defendant, prima facie, by a personal service of that process upon him
The declaration also all edges, that it was personally served upon the defendant by a constable of the county, &c. This means, so far as regards the officer, a legal service, which could only be made in the county. (§§ 14,15.) The defendant being-found within the territorial limits of the court, must be held, prima facie, amenable to its jurisdiction, by virtue of its ordina[378] ry process. It is said that we can presume nothing in favor of the jurisdiction of an inferior court. Neither can we presume any thing against it. Now that the defendant was in the county when the process was served, is a fact admitted by the demurrer. As nothing is to be intended, we are not at liberty to infer from that fact that he was a resident; nor can we presume that he had a residence elsewhere; and if neither presumption is indulged, the defendant would be found in the county without having a legal residence any where. This is no uncommon occurrence. But in that event he was properly sued by summons, as none are exempted from that process by statute, but those who “ shall reside out of the county.” (2 R. S. 2d ed. § 292.)
Again, if the residence of the defendant must be averred, it must also be proved. It can not be shown by the docket of the magistrate, for although it is the foundation on which the proceedings rest, as the defendant insists, no record of the fact is directed or authorized by the statute. (2 R. S. supra, § 243.) The preliminary proceedings to authorize the issue-of extraordinary process, must be in writing and kept by the justice, as the revisers inform us, for his protection. (Reviser’s Notes to § 5 ; 3 R. S. 681, 2d ed.; 2. id. § 250.) But according to the view of the defendant, proof of all the proceedings, from the application of the plaintiff for a summons to the rendition of the judgment, unless the defendant appeared, would not be even - presumptive evidence in favor of the magistrate or any one else.
These are some of the inconveniences resulting from the doctrine contended for by the defendant; others will readily suggest themselves. They seem to have had some influence with our courts; for without adverting to Smith v. Mumford, (9 Cowen, 26,) and Stiles v. Stewart, (12 Wend. 473,) the point [379] was distinctly presented and decided in Hoose v. Sherrill, (16 Wend. 33,) and in Bromley v. Smith, (2 Hill, 518.) And in Cornell v. Barnes, (7 Hill, 37,) the form of a declaration upon a judgment of this sort was indicated, and it was said that to give jurisdiction of the person, “ the plaintiff must aver, either that the defendant appeared, or that process was sued out and duly served upon him.” And the learned reporter in a note reviewing the authorities, remarks, “ that the plaintiff should begin by alledging the issuing and service of the summons, &c. by which the suit was commenced, and then pass by i liter processum fuit, to the rendition of the judgment.” This has been done in this case. And we think that enough has been alledged to show, prima facie, a valid judgment. The judgment must be affirmed.
Boggles, Hurlbut, Harris, Pratt, and Gray, Js. concurred, and Harris, J. delivered an opinion in favor of affirmance.
Dissenting Opinion
The principles involved in this case are too important to allow them to be disregarded, without saying a word in their defence.
It is an established rule in our law, that no court can give a valid judgment, unless it has jurisdiction of the subject matter in controversy, and has acquired jurisdiction over the person of the defendant, in the mode prescribed by law. When a court acts without jurisdiction, either as to subject or person, its proceedings are not only erroneous, but absolutely void; and may be attacked in a collateral action, as well as by way of review.
In pleading the judgments and proceedings of courts and officers of special and limited powers, jurisdiction must be shown; and it is not enough to aver in general terms that they had jurisdiction, but the facts on which jurisdiction depends must be stated. It will not do to say that a justice of the peace had jurisdiction, and gave judgment; but it must be shown how he acquired jurisdiction : to wit, by voluntary appearance, or the issue and service of legal process.
These points have not only been adjudicated in a great number of reported cases, but they have been acted upon in hundreds of others, which have not found their way into the books. They are rules of every day application in the administration of justice : and although they have been either forgotten or disregarded in a few instances, the cases of the kind to be found in the books are not enough to make more than a ripple on the great current of authority. Several cases in point on the principles in question are mentioned in the dissenting opinion which was delivered in Hoose v. Sherrill, (16 Wend. 36 ;) and I will add now several other cases to the same effect, which have been adjudged in the courts of this state since that time. (Stewart v. Smith, 17 Wend. 517; Nicoll v. Mason, 21 id. 339; Bloom v. Burdick, 1 Hill, 130; Schneider v. McFarland, 2 Comst. 459, S. P.; Dowd v. Stall, 5 Hill, 186 ; Sackett v. Andross, id. 327; Harriot v. Van Cott, id. 285 ; Van Etten v. Hurst, 6 id. 311; Bowne v. Mellor, id. 496 ; Cornell v. Barnes, 7 id. 35 ;
How what has the pleader done in this case by way of showing the facts on which the jurisdiction of the justice to render the judgment depended ? He says that a summons was issued on the 8th, and made returnable on the 17th day of May; and was personally served on the defendant more than six days before the return day. That is very well if the defendant resided in the same county with the justice; but if the defendant resided in another county, he was only liable to be proceeded against by short suiñmons or short attachment, running not more than four days; (Stat. of 1831, p. 403, § 33;) and the pleader has not told us where the defendant resided. There is a total defect of allegation as to one of the material facts on which the jurisdiction of the justice to give the judgment depended ; and the declaration is not a whit better than it would be if every thing relating to jurisdiction had been omitted. If the defendant was a non-resident of the justice’s county, it is not only clear upon general principles that this long summons could give the justice no authority to act, but the legislature has declared in express terms, that if a non-resident defendant shall be proceeded against otherwise than by short summons or short attachment, “ the justice shall have no jurisdiction of the cause.” (§ 33, supra,.) We can no more presume that the defendant was a resident of the justice’s county for the purpose of making the long summons good, than we could presume that he was a non-resident had a short summons been pleaded. It has been shown already that it is not a case for indulging in presumptions of any kind; but the facts which show jurisdiction must
But it is said that if the proper process was not issued, the defendant should have appeared before the justice and made the objection ; and having neglected to do so, the judgment is valid. This doctrine depends for its support on two or three cases to which allusion has already been made, Hoose v. Sherrill, (16 Wend. 33,) and Bromley v. Smith, (2 Hill, 217,) as standing [382] in conflict with the strong current of authority on the subject. Let us now see how much this new mode of getting jurisdiction is worth upon principle. A defendant may be called into a justice’s court in five different ways: by warrant, long attachment, short attachment, long summons and short summons, acor ding to the circumstances of each particular case. There is no authority to issue the different kinds of process indiscriminately, but only to issue one kind or another, as the facts of the particular case may warrant. And yet the argument we are considering comes to this ; the justice may disregard the statute under which he acts, and issue what kind- of process he pleases; and he will get jurisdiction, unless the defendant appears and objects that the law ought not to have been thus violated. It results from the doctrine, that though I am only liable by law to be sued by summons, my property may nevertheless be seized by attachment, or my body be arrested by warrant; and these illegal acts will give the justice jurisdiction to render a valid judgment against me: Or, if I am in a journey, out of my own county, and only liable by law to be delayed four days, at the most, to answer a short summons, yet I may be delayed twelve days to answer a long summons. And although the legislature has expressly declared that in such a case “ the justice shall have no jurisdiction,” (§ 33, supra,) yet the argument is, that I must stop in my journey, go before the justice, and tell him he has no right to act; and if I omit to do so, he will, some how or other, get jurisdiction to give a valid judgment. The rule formerly was, that where there was no legal process, there must be a voluntary appearance to confer jurisdiction; but now we are told that a refusal to appear will answer the purpose. Such
I will now refer a little more fully to a few cases for the purpose of showing, that the general rules which have been mentioned have been carried out in practice, and that inferior [3S3] courts can only acquire jurisdiction over the person of the defendant by pursuing the forms prescribed by law. If a justice of the peace issue an attachment without first taking the proof which the statute requires, the judgment which he renders will be void for want of jurisdiction, and he may be sued as a trespasser. (Vosburgh v. Welch, 11 John. 175; Adkins v. Brewer, 3 Cowen, 206.) And if he issue a warrant without the proof required by law, he acts without jurisdiction. (Loder v. Phelps, 13 Wend. 46.) When a summons is the proper process, a warrant issued by the justice is irregular and void, and gives no jurisdiction over the person of the defendant. (Gold v. Bissell, 1 Wend. 210.) It is not enough that there be regular process of summons, and a return of personal service, but the return must follow the requirement of the statute, and show when the service was made, so that it may appear that the defendant has had full legal notice. “ It is a regular return only that can give jurisdiction.” (Stuart v. Smith, 17 Wend. 517; Wheeler v. Lampman, 14 John. 481.) When a warrant issues, or process in the nature of a warrant, it is not enough that the defendant is summoned, and a regular return is made upon the warrant; the defendant miist be actually brought into court, or the justice will have no jurisdiction, and the judgment which he renders will be void. (Colvin v. Luther, 9 Cowen, 61; Bigelow v. Stearns, 19 John. 39.) In the last mentioned case Ch. Justice Spencer remarked : “ It is no answer to say, that being summoned, he might appear. It was the duty of the justice to cause him to be brought before him.” The remark goes on the ground, that if the justice do not strictly pursue his authority in every particular, he will not gain jurisdic
We are told that a justice’s judgment may be proved by a transcript from his docket; and that the docket, as prescribed by the statute, may not show jurisdiction. (2 R. S. 268, §§ 243, 246.) Although the statute does not in terms require, it fully authorizes the justice to enter every thing in his docket necessary to show jurisdiction, both as to subject and person; and if he omit to do so, neither the docket, nor a transcript from it, will prove the judgment valid. The statute says the transcript “ shall be evidence to prove the facts stated in such transcript.” It is good so far as it goes, and no further. If it omit to show jurisdiction of the person, either by voluntary appearance or regular process, the fact must be established by other evidence —as by producing the process, and proving the residence where
When we consider the great number and magnitude of the powers which-have been conferred on inferior courts and officers —how extensive their authority is over the persons and- property of individuals—the importance of requiring them to show jurisdiction, or in other words, to show that they have pursued the path marked out for them by law, can hardly be over estimated. But I will not enlarge on the value pf the principle involved in the case, after, having shown that it has been settled by a- long line of judicial, decisions, ending in a judgment of this court, rendered within a year, and'directly in point.
If it be true, as was said in argument, that we are more strict than the English courts in requiring inferior "magistrates and officers to-show their jurisdiction, we shall, no longer have a title to that commendation—for such I think it to be—after the highest court in the state shall" have decided that a justice of the peace may act without authority ; for in England, the king himself is not above the laws.
Jewett, J. also delivered an opinion in favor of reversal.
Judgment affirmed.
