120 N.Y.S. 304 | N.Y. App. Div. | 1909
This appeal is by the United States-from an order df the Special. Term, held in and for the county of Kings, that admits the alien James Breen to citizenship. Breen was a resident of that county, which is in the second judicial district, at the time he filed, his petition for admission, but before his petition came on to be heard he had ohanged his residence to the county of Kew York, which is in the first judicial district. When this change of residence was elicited upon the hearing the appellant objected to the jurisdiction, the objection .was overruled ánd the alien was admitted. The correctness of that ruling is the sole question on this appeal. The
I atn not prepared to say that Congress contemplated the judicial districts of our Supreme Court and not the entire territory of the jurisdiction of the respective courts enumerated. But I shall consider these provisions as if such was the legislative intent. The proceedings are like unto a civil action or proceeding. (Spratt v. Spratt, 4 Pet. 406; Matter of Clark, 18 Barb. 444.) Although there must be a declaration of intention, such act is not the initiation of a judicial proceeding or any part thereof. It is a mere expression of a state of mind, and the filing and formal record thereof is ministerial, not judicial. (Andres v. Circuit Judge, 77 Mich. 85; Works Cts. & Juris. 739.) The first step in the judicial proceeding of admission is the petition. And the general principle. would give the court jurisdiction, at the time when the petition was duly filed pursuant to the prescribed procedure. In United States v. Arredondo (6 Pet. 691, 709) the court say: “ The power to hear and determine a cause is jurisdiction; it is 1 coram, judice ’ whenever a case is presented which brings, this power into action;
Under the general rule, a change of residence of the petitioner subsequent to the acquisition of jurisdiction would not affect .the •jurisdiction. (Upton & Williamson v. New Jersey Southern R. R. Co., 25 N. J. Eq. 372, 375, and authorities cited; Conolly v. Taylor, 2 Pet. 556; Dunn v. Clarke, 8 id. 1.) In Conolly v. Taylor (supra), Marshall, Oh. J., said': “Where there-is no change of party, a jurisdiction depending on the condition of the -party is governed by that condition, as it was at the .commencement- of the suit.” The learned United States attorney asked would not the court lose jurisdiction by a certain act of the person, for example by his moving out of the judicial district during the pen- . dency of his petition, if Congress so declared ? Doubtless Congress could regulate the jurisdiction in such proceedings. (People v. Welch, 141 N. Y. 266.) But of course the question is whether Congress has done so in the respect under consideration. 1 fail to find any explicit provision that indicates that the court loses its
The order is affirmed.
Hirschberg, P. J., Woodwabd, Bure and Miller, JJ., concurred.'
Order affirmed on reargument, without costs.