34 N.Y.S. 843 | N.Y. Sup. Ct. | 1895
On the 17th March, 1894, the plaintiff recovered in the supreme court a judgment against John P. Hughes for the sum
The defendants in the present action are claimed to be liable by reason of the act of the sheriff in discharging the defendant in the execution in pursuance of the order of the special term. The claim of plaintiff is that the special term had no jurisdiction to make the order, and that it was therefore void, and no defense to this action. It is not claimed that if the order was simply erroneous it would not be a protection to the sheriff and the sureties. Wilckens v. Willet, *40 N. Y. 524. The question, therefore, is, did the special term have jurisdiction to act?
In the motion made by the defendant in the execution, the special term was called upon, and it was its duty, to construe the provisions of section 572. In People v. Sturtevant, 9 N. Y. 267, it is said that the duty to decide is the test of jurisdiction. In that case, on the subject, generally, of jurisdiction, it is said, quoting from Rhode Island v. State of Massachusetts, 12 Pet. 718:
“Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit; to adjudicate, or exercise any judicial power over them. The question is whether, on the case before a court, their action is judicial or extrajudicial,—with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court had jurisdiction. What shall be adjudged or decreed between the1 parties, and with which is the right of the case, is judicial action, by hearing and determining it”
In Hunt v. Hunt, 72 N. Y. 217, it is said:
“Jurisdiction of the subject-matter of an action is a power to adjudge concerning the general question involved therein, and is not dependent upon the state of facts which may appear in a particular case, or the ultimate existence of a good cause of action in the plaintiff therein.”
In Pinckney v. Hagerman, 4 Lans. 374, 377, it is said, of an order setting aside a body execution:
“That the court had power over its own. process, to vacate it and set it aside, at any stage of the proceedings under it, cannot be questioned. And it is of no consequence to the question under consideration on what evidence or grounds the court proceeded in setting aside the execution, and discharging the prisoner under it On whatever ground it was made, the sheriff was bound to obey the order, and is therefore justified in obeying it.”
In the same case, in the court of appeals (53 N. Y. 31, 34), it is said:
“The court had jurisdiction of the action, and complete power and control over the proceedings and' process in it; and hence it might set aside this execution, as one of the proceedings and as a process in the action.”
It cannot well be said that there was here an entire absence of judicial authority to act. People v. Van Buren, 136 N. Y. 252, 32 N. E. 775. Here was an action in the supreme court, and a controversy between the parties over the process issued for the enforcement the judgment. The construction of section 572 of the Code was in
Judgment affirmed, with costs.