78 N.J. Eq. 527 | N.J. | 1911
The opinion of the court was delivered, by
The bill in this case seeks to have decreed to be fraudulent and null and void as against the complainant certain conveyances of, and encumbrances upon, lands of the defendant Little Russian Greek Catholic St. Peter and Paul Church of Jersey City, a corporation of this state, to have a judgment which the complainant holds against that defendant declared to be a lien upon those lands; and to have that judgment enforced against them. The Little Russian, &c., church filed a plea to the jurisdiction averring that it had never been brought into court by the service of subpoma, that by reason thereof the court did “not now, never had, and cannot have jurisdiction over it,” and that the failure to serve it with process was a bar to the complainant’s right to relief upon its bill, and praying that it be dismissed from the court, with its costs. The complainant replied to the plea, joining issue thereon, and the case was then referred to the vice-chancellor to take the proofs and hear the cause. At the close of the taking of the tes
The defendant’s solicitor evidently presumed that by his plea he was presenting a case similar to that which was before us in Wilson v. American Palace Car Co., 65 N. J. Eq. (20 Dick.) 730, in which we stated at the conclusion of our opinion (at p. 735) : “On this record we are constrained to adjudge that these defendants have not been brought before the court by due process of law, that therefore they are not obliged to answer the bill and should be dismissed.” That the solicitor of the complainant held the same view with relation to the plea is shown by the filing of the replication. But in the case referred to the question before us for decision was whether non-resident defendants who had not been brought into court, and could not be brought in against their consent, and who declared themselves unwilling to submit to its jurisdiction, were entitled to set these facts up in a plea to the jurisdiction, and, upon establishing them, be dismissed; and what we said in the part of the opinion already quoted referred only to defendants occupying such a position. We, of course, did not intend to say, and did not say, that a defendant in an equity suit who was a resident of the state, and subject to be brought within the jurisdiction of the court by the compulsory process, could,
The order appealed from will be affirmed.