66 Cal. 341 | Cal. | 1885
In this proceeding the petitioner asks for an order to perpetually stay proceedings on a judgment entered .against him in the Superior Court of Sacramento county, upon •the ground that he was, prior to and at the time the action was •commenced, and is now, consul of the republic of Paraguay, at •the port of San Francisco. Of the fact of his consular appointment there is no question, and his exequatur shows that he was in office at the commencement of the action; but he did not avail himself of the fact by the answer which he filed in the action, or otherwise, on the trial of the case, and judgment was rendered against him, from which he has appealed. Now, however, pending the appeal in this court, he claims the privilege of exemption from the jurisdiction of the courts of the State; and the only question is whether the privilege now claimed was not waived by omitting to plead it in the Superior Court.
All the questions involved in the application of the petitioner seem to have been settled by the recent decision of the Supreme-Court of the United States, in the case .of Doers v. Presion, 111 U. S. 256; S. C., 4 Sup. Ct. Rep. 407. In that case, a citizen of the state of New York brought an action in one of the circuit courts of the United States, in the state of New York, against one Boers, who was, at the commencement of the action-, consul at the port of New York for Norway and Sweden. Boers made no objection to the jurisdiction of the court, but answered to the merits of the case, and went to trial; but when the trial went against him, he sued out a writ of error to the Supreme Court,, and claimed that he ought to have been impleaded in the district court of the United States, and not in the circuit court and it was there contended, as it is here, that when a defendant answers and goes to trial, and raises no objection or question as-
It follows that the proceedings against the petitioner in the Superior Court were without jurisdiction, and that the judgment appealed from must be reversed. Judgment reversed, and cause remanded, with direction to the lower court to dismiss the action.
Morrison, C. J.,Myrick, J., Sharpstein, J., Ross, J., McKinstry, J., and Thornton, J., concurred.
Rehearing denied.