1 Barb. 449 | N.Y. Sup. Ct. | 1847
That the constitution of the United States has conferred upon the federal courts exclusive jurisdiction of suits against foreign consuls is not denied.
But the question now before the court relates to a suit commenced in a state court, before the party claiming exemption as a consul received his appointment, and when the state courts had jurisdiction of the suit, exclusive of the federal courts. That the suit was rightfully commenced in the New-York common pleas, is admitted: and the question now presented for determination is, whether the subsequent appointment of Heinrichs as consul of a foreign government deprived the state court of the jurisdiction which it had thus rightfully acquired;
The case of Maunhardt v. Soderstrom, (1 Binney, 138,) was much relied upon in support of the motion. But I cannot
Again; this suit was originally commenced in the New-Yorlv common pleas. It was removed into the supreme court by the defendant himself, who became plaintiff in error. He occupies the position of one voluntarily bringing his suit in this court for redress. Shall he be permitted, after failing in that suit, to have the proceedings declared void on the ground of his privilege as an officer of a foreign government ? Jurisdiction of state courts in suits to which foreign consuls are parties, is excluded only in suits against them. They are still at liberty, if they choose to do so, to bring suits against other persons, in the state courts. It seems to me, therefore, that even though the defendant’s appointment might have furnished sufficient grounds to arrest the proceedings in the common pléas,.where he was a defendant, he does not stand in the same position in the court to which he has voluntarily and rightfully applied for
I am also inclined to think that' even if the appointment of the defendant as consul, after the suit had been commenced against him, could have been . made available to deprive the state court of the jurisdiction it had acquired, yet the objection could only have been properly made by plea, or perhaps upon motion, before proceeding in the cause; and that having neglected to avail himself of his exemption before proceeding to the trial upon the merits, he precluded himself from afterwards objecting to the jurisdiction of the court. But it is unnecessary to decide this question. It is enough that when the suit was commenced, the federal courts had no jurisdiction either of the defendant or the subject matter of the suit, but that jurisdiction of both belonged exclusively to the state courts; that the suit was thus rightfully commenced in the New-York common pleas; that after the appointment of the defendant to the office by virtue of which he now claims exemption, he proceeded not only to a trial in the common pleas upon the merits, without ■ suggesting to the court his privilege, but also brought his writ of error to the supreme court to review the decision of the common pleas. Under these circumstances, he must be deemed to be estopped from setting up his privilege in bar of the jurisdiction of the state courts, if, indeed, he ever had such right. The motion must therefore be denied, with costs.