77 N.J.L. 143 | N.J. | 1908
The opinion of the court was delivered by
The issuance of the writ asked for is resisted upon several grounds, each of which is an attack upon the judgment. It is well settled that where a court of general jurisdiction has jurisdiction of the subject-matter and has acquired jurisdiction over the person of the defendant, its judgment is invincible against collateral attack. It is only where there is lack of jurisdiction in one or both of the above particulars that the judgment is void and may be so treated in a collateral proceeding. Westcott v. Danzenbaker, 1 Halst. 132; Van Dyke v. Bastedo, 3 Gr. 224; Godfrey v. Myers, 3 Zab. 197; Hess v. Cole, Id. 116; National Docks Co. v. Pennsylvania Railroad Co., 7 Dick. Ch. Rep. 58; Podesta v. Binns, 3 Robb. 387.
Jurisdiction will be presumed in cases of domestic judgments of courts of general jurisdiction. Miller v. Dungan, 6 Vroom 389.
The defendants insist that the record discloses upon its face that the judgment was improvidently and prematurely entered, and hence is void. The reasoning of the defendants on this subject is that the statute of 1846 (Gen. Stat., pp. 408, 410) requires the service of a summons issued against a board of chosen freeholders to be made “thirty days at least before the session of the court to which such process is returnable,” and, as such service was not made in this case, the judgment is a nullity. There would be no merit in this contention if the above statute was impliedly repealed by section 52 of the Practice act. Roche v. Jersey City, 11 Vroom 257.
Irregularities in proceedings in a court of general jurisdiction as against collateral attack are cured by judgment (Apel v. Kelsey, 52 Ark. 341; Fischer v. Holmes, 123 Ind. 525), which is fatal to the objection that in actions against boards of freeholders the statute does not permit a declaration to be served with the summons. If the provisions of section 95 of the Practice act (Pamph. L. 1903, p. 537), include municipal corporations defendant, this objection has no foundation. Dock v. Elizabethtown Manufacturing Co., 5 Vroom 312, and Cooper v. Cape May Point, 38 Id. 437, are cases which point to this construíction.
Nor can it be successfully urged that because the declaration on its face exhibits a cause of action barred by the statute of limitations, it is equivalent to stating no cause of action whatever. Such is the contention of the defendant. The statute does not obliterate the cause of action. This defence may be waived. To be availed of it must be pleaded. Christie v. Bridgman, 6 Dick. Ch. Rep. 331; Peer v. Cookerow, 2 Beas. 136; West Hoboken v. Syms, 20 Vroom 546.
These are matters that should be addressed to the court in which the judgment was entered and that were correctly decided by it in refusing to open the judgment, and, while we have considered them, they cannot lie availed of as a means of collateral attack upon the recovery.
The rule to show cause will be made absolute, with costs, and a mandamus will be issued (Lyon v. Elizabeth, 14 Vroom 158; Londrigan v. McNally, 36 Id. 163) peremptory in form, both parties having been heard on this rule and there being no disputable facts. State ex rel. v. Paterson, 6 Id. 196.