"Jurisdiction of the subject-matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen. under that general question."1

The definitions given by different courts vary in their language, but are practically the same as the one given. above. "To have jurisdiction is to have power to inquire into the fact, to apply the law, and to declare the punishment, in a regular course of judicial proceeding." 2

"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 extra-judicial, with or without the authority of law to render 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 has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action by hearing and determining it."3

This last definition would be accurate enough, in most cases, but it may mislead. Undoubtedly the statement that, under the circumstances enumerated, the court would have jurisdiction of the action, and would have power and authority to render any judgment authorized by law in that class of cases, is correct; but there may still be a want of jurisdiction to render a particular kind of judgment, because such judgment is not authorized by law in such a case as the one before the court.

"The officer is judge in the cases in which the law has empowered him to act, and in respect to persons lawfully brought before him; but he is not judge when he assumes. to decide cases of a class which the law withholds from his cognizance, or cases between persons who are not either 41 Cal. 253; Sheldon v. Newton, 3 Ohio St. 499; Hunt v. Hunt, 72 N. Y. 224; 28 Am. Rep. 129.

'Hunt v. Hunt, 72 N. Y. 229; 28 Am. Rep. 129.

Hopkins v. Commonwealth, 44 Mass. 462.

'State of Rhode Island v. State of Massachusetts, 12 Pet. 718; People v. Sturtevant, 9 N. Y. 266; 59 Am. Dec. 536.

actually or constructively before him for the purpose. Neither is he exercising the judicial function when, being empowered to enter one judgment, or make one order, he enters or makes one wholly different in nature. When he does this he steps over the boundary of his judicial authority, and is as much out of the protection of the law, in respect to the particular act, as if he held no office at all. This is the general rule. Jurisdiction in a judge may be defined as the authority of law to act officially in the matter then in hand."1 "Jurisdiction in courts is the power and authority to declare the law. The very word, in its origin, imports as much; it is derived from juris and dico-I speak by the law. And that sentence ought to be inscribed in living light on every tribunal of criminal power. It is the right of administering justice through the laws, by the means which the law has provided for that purpose. But here the mode and the manner of administering the justice of the country was not provided or prescribed by the law, and is directly prohibited by it. There was, therefore, no jurisdiction." 2

"Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in the given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. And, third, the point decided must be in substance and effect within the issue.” 3

Here is an element in the definition of jurisdiction not contained, it is believed, in the definitions usually given, and certainly the correctness of this decision, so far as it may be regarded as laying down a general rule, must be open to serious question. In a case in which a judgment is taken by default, no doubt it would be void, but not where the defendant appears and defends the action. It would be a most radical departure from well settled principles to hold that in every instance where the judgment or decree of a court is outside of the

1 Cooley on Torts, 417; Jones v. Brown, 54 Ia. 79.

2 Mills v. Commonwealth, 13 Pa. St. 630.

3 Munday v. Vail, 34 N. J. Law, 422.

But see on this point Blondeau v. Snyder, 31 Pac. Rep. 591.

issues it is void for want of jurisdiction in the court to render it. A want of jurisdiction may appear from the failure of the declaration or complaint to allege such facts as will set the jurisdiction of the court in motion.' But this is not because no issue is presented, but because jurisdiction of the subject-matter does not appear.2

It may be, and no doubt is true as said in this case, that a decree of divorce rendered between two of the parties in an ordinary foreclosure case would be invalid, but it would not be void because not within the issues, but because no such decree could be rendered in a foreclosure suit. Such a case would fall clearly within the rule laid down above that a judgment not authorized by law in the class of cases, of which the case before the court is one, is void for want of jurisdiction. And even this rule must be difficult of application under the code system of administering justice. Under the extreme views sometimes

1 Spoors v. Coen, 44 Ohio St. 497; 9 N. E. Rep. 132.

2

In Munday v. Vail, supra, the court, after, giving the above definition, say: "That a court can not go out of its appointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by a multitude of authorities. A defect in a judgment arising from the fact that the matter decided was not embraced within the issue, has not, it would seem, received much judicial consideration. And yet I can not doubt that, upon general principles, such a defect must avoid a judgment. It is impossible to concede that because A and B are parties to a suit, that a court can decide any matter in which they are interested, whether such matter be involved in the pending litigation or not. Persons by becoming suitors do not place themselves, for all purposes, under the control of the court, and it is only over these particular interests which they choose to draw in question that a power of judicial decision arises. If in an ordinary foreclosure case, a man and his wife being parties, the court of chancery should decree a divorce between them, it would require no argument to convince every one that such decree, so far as it attempted to affect the matrimonial relation, was void; and yet the only infirmity in such a decree would be found, upon analysis, to arise from the circumstance that the point decided was not within the substance of the pending litigation. In such a case the court would have acted within the field of its authority, and the proper parties would have been present, the single but fatal flaw having been the absence from the record of any issue on the point determined. The invalidity of such a decree does not proceed from any mere arbitrary rule, but it rests entirely on the ground of common justice." See to the same effect, Reynolds v. Stockton, 43 N. J. Eq. 211; 10 Atl. Rep. 385; Reynolds v. Stockton, 140 U. S. 250; 11 Sup. Ct. Rep. 773.

taken that the distinction between different kinds of actions have been abolished for all purposes, it could not be said that a judgment in a given case must be held invalid when no such judgment could lawfully be rendered in the class of cases to which it belongs. But the divisions of actions at law and in equity can not be thus brushed aside. So far as the matter of form is concerned all common law and equity actions and suits have been consolidated into one denominated a "civil action," but the distinction between these several kinds of actions, in respect to matters of substance, still remains and must have its effect in this as in many other matters affecting the substance and merits of a controversy, and not the mere matter of form or procedure.1

A court may have jurisdiction to hear and determine a cause, and yet, as we have seen, some particular act done may be outside of or in excess of its jurisdiction. Every movement of the court, within its power to act, is an exercise of its jurisdiction." And "the authority to hear and determine a cause is jurisdiction to try and decide all of the questions involved in the controversy."

3

"Jurisdiction has often been said to be the power to hear and determine.' It is, in truth, the power to do both or either, to hear without determining, or to determine without hearing."

Where jurisdiction of the person of a defendant is acquired by publication, and the declaration or complaint is thereafter amended in such way as to allege a different cause of action and without any new notice being given a judgment is taken by default, the judgment is void.

1 Vail v. Jones, 31 Ind. 467, 473.

'Hopkins v. The Commonwealth, 3 Metc. 462; State of Rhode Island v. Massachusetts, 12 Pet. 718.

3 Quarl v. Abbott, 102 Ind. 239; 1 N. E. Rep. 476.

Ex parte Bennett, 44 Cal. 88. A very full collection of the authorities on this subject will be found in 12 Am. & Eng. Enc. of Law, 244 et seq. The question as to what is necessary to give a court jurisdiction of the subject and of the parties to an action will be considered in another place. (Post, secs. 12, 13.)

5 Stuart v. Anderson, 70 Tex. 588; 8 S. W. Rep. 295, 300.

So the judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached."

j

9. DIFFERENT KINDS OF JURISDICTION.-The most important division of jurisdiction is that which separates the common law and equitable jurisdiction of courts. Both of these are fully considered in another place."

Under the system of practice and pleadings which kept these different kinds of jurisdiction separate and distinct, not only with respect to the courts in which they were administered, but with respect, also, to the mode of procedure and the remedies to be administered, this classification was much more important, as affecting the law of jurisdiction, than it is at the present day. But under the codes, the common law and equity principles and procedure necessarily influence not only the remedies. to be administered but the means by which the relief may be obtained. There is an inherent and essential difference between common law and equity rights and remedies that permeates every branch of the law under the codes as well as under the old systems of procedure. It is well, therefore, for the student and the lawyer to study carefully the jurisdiction of the courts. as it existed in the common law and equity courts in England and in this country before the enactment of the codes. This is necessary not only because the practice and pleadings under the codes can not be mastered without such knowledge, but for the further reason that in the federal courts, and in the courts of some of the states, these separate jurisdictions are still maintained in prac

tice.

The jurisdiction exercised by the common law and equity courts differs mainly in the remedies that may be administered by each. In a court of law, the injured

1

1 Spoors v. Coen, 44 Ohio St. 497; 9 N. E. Rep. 132. Post, sec. 11. Post, secs. 65 et seq.