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proceeding. When a court transcends its jurisdiction its judgment will also be held void. Therefore, the pendency of a suit for the same cause of action in a court having no jurisdiction is not sufficient to abate a subsequent suit instituted in a court that has the rightful jurisdiction.3 . But a bond entered in an action brought in a court without jurisdiction is not necessarily void. And the want of jurisdiction will not always prevent the defendant from recovering costs."

(6) Illegal Courts. The sentence of an illegal court is void.6

not, therefore, be collaterally impeached. will be held void in a collateral proceedOn the other hand, if it proceeded with- ing has been treated in § 1. Definition, out jurisdiction it is equally unimportant note 1, p. 246, Alleged Defect in Defini. how technically correct and precisely tion; and note 1, p. 247, Definition Recertain, in point of form, its record may sulting from the Latest Cases. appear, its judgment is void to every 3. It followed that the pendency of a intent and for every purpose, and must suit for the same cause of action in a be so declared by every court in which court having no jurisdiction is not sufliit is presented. Sheldon v. Newton, 3 cient to abate a subsequent suit instiOhio St. 494, 498. See Whitewell v. tuted in a court that has the rightful Barbier et al., 7 Cal. 54. And a court jurisdiction. Rood v. Eslava, 17 Ala. has the right to determine whether its 430; Gordon's Appeal, 93 Pa. St. 361. writs when issued are void or amend- 4 In an action on a replevin bond, able so as to give the court jurisdiction. the fact that the defendant had comIts decision thereon cannot be collater menced his action before a tribunal inally impeached. Rose v. D. V. R. competent to try the matter in dispute Co., 47 Iowa 420.

is no defence. The principle is that a When a municipal corporation has party who avails himself of the process the power to pass an ordinance for a of an inferior court cannot

escape certain purpose, but exercises that the responsibility of his own act, upon power in an unauthorized manner, the the ground that such tribunal had no ordinance is valid and until set aside by jurisdiction over the subject matter. legal proceedings brought for that pur. McDermott v. Isbell, 4 Cal. 113. pose, and its validity cannot be brought 5. The want of jurisdiction of the in question collaterally as a matter of court over the subject matter of the acdefence. Treasurer of Camden v. Mul- tion will not prevent the defendant from ford, 2 Dutch. 26 (N. J.) L. 49.

recovering costs, on the dismissal of the 1. Consequently, if the inferior court complaint, or deprive him of the right had no jurisdiction of the subject mat- to damages upon the injunction underter, the superior court can have none taking, when the injunction is dissolved. on appeal. Collins et al. 7. Woodruff, Blair v. Cummings, 39 Cal. 667; Cum9 Ark: 463; Camp v. Wood, 10 Watts berland Coal & Iron Co. v. Hoffman (Pa.) 118.

Steam Coal Co., 39 Barb. (N. Y.) 16; At least unless the appeal be taken King v. Poole, 36 Barb. (N. Y.) 242. to a court having original jurisdic- But when a case has been improperly tion of the subject matter, and the removed

one State court parties voluntarily appear and consent another, the cost of such removal to trial there. Randolph Co. v. Ralls, cannot be recovered. Humiston 18 III. 29. Compare Osgood v. Thurs. Ballard, 63 Barb. (N. Y.) 9. And ton, 23 Pick. (Mass.) 110.

costs cannot be recovered when the 2. If a court transcends its jurisdic- want of jurisdiction was apparent on tional powers, its judgments will be the record. Gormly v. McIntosh, 22 void. Bozwell v. Otis, 9 How. (U. S.) Barb. (N. Y.) 271. 336; Arizona v. Mix, i Arizona 52; See the article on Costs, § 3, (c), kenney 7 Greer, 13 Ill. 432; Folger v. QUESTIONS OF JURISDICTION, Am, Columbian Ins. Co., 99 Mass. 267; Cor- & Eng. Encyclo. of Law, vol. 4, p. withe v. Grifling, 21 Barb. (N. Y.) 9; 314. Hill v. Robertson, i Stroblı, (S. Car.) 6. Illegal Courts.-"A sentence pro1; Barrett 2'. Crane, 16 Vt. 246.

fessing on its face to be the sentence of The question whether such judgments a judicial tribunal, if rendered by a sell



The confederate States while possessed of the attributes of government to some degree had no power to create a court, nor was the congress of the confederate States a lawful body authorized to enact legislation. The rebellious States, however, remained parts of the Union.3 The legislatures of those States were competent to enact such legislation as did not conflict with the constitution, and was not hostile to the Union. But all acts passed in aid of the rebellion were void.5

(U. S) 197

constituted body, or by a body not em. to the purchaser or his assignees. Dewpowered by its government to take ing v. Perdicaries, 96 U. S. 193; Willcognizance of the subject it had decided, iams v. Bruffy, 96 U. S. 176. Compare could have no legal effect whatever." Newton 2. Bushong, 22 Gratt. (Va.) Rose v. Himely, 4 Cranch (U. S.) 241, 628; s. C.. 12 Am. Rep. 553. '68, 269.

3. The ordinances of secession passed 1. The confederate states were suffi by the several confederate states were ciently in possession of the attributes of void. Those States remained parts of government to be regarded as in fact the Union. Texas v. White, 7 Wall. the ruling or supreme power of the (U. S.) 700. country over which their pretended 4. The legislatures of the rebellious jurisdiction extended, so far as to make States were at least de facto legisla. a seizure by them, of a vessel, a "cap- tures, and all their enactments, which ture" within the terms of a warranty in were not hostile to the Union, nor to the a policy of insurance. Mauran v. Ins. authority of the general governinent, Co.

, 6 Wall. (U. S.) 1, 13. Compare and which were not in conflict with the Newton v. Bushong, 22 Gratt. (Va.) constitution of the United States, or of 628; S. C., 12 Am. Rep. 553.

the States, have the same validity as if But the confederate states had no they had been enactments of legitimate power to create a court. An act of the legislatures. Thorington v. Smith, 8 confederate congress creating such a Wall. (U. S.) 1, Horn v. Lockhart, 17 court was void. The court was a nul- Wall. (U S.) 570, Sprott v. United lity and could exercise no rightful States, 20 Wall. (U. S.) 459; United jurisdiction. Hickman v. Jones, 9 Wall. States v. Home Ins. Co., 22 Wall. (U.

S.) 99; Keith v. Clark, 97 U. S. 454; When, however, during the late civil Ketchum v. Buckley, 99 U. S. 188; war, portions of the insurgent territory Cook v. Oliver, 1 Woods (U. S.) 437; were occupied by the national forces, it Hughes v. Stinson, 21 La. An. 540, was within the constitutional authority Pulaski Co. v. Stuart, 28 Gratt. (Va.) of the president, as commander in chief, 872. But see Moseley v. Tuthill, 45 to establish therein provisional courts Ala. 621; s. c., 6 Am. Rep. 711. for the hearing and determination of all 5. But all acts passed by the legislacauses arising under the laws of the tures of the several States tending to State or of the United States. The aid the rebellion, were void. Texas v. Grapeshot, 9 Wall. (U. S.) 129.

White, 7 Wall. (U. S.) 700; Thomas v. 2. In order to give the United States City of Richmond, 12 Wall. (U. S.) supreme court jurisdiction to pass upon 349; Huntington v. Texas, 16 Wall. (U. the validity of a statute, the statute S.) 402; First Nat. Bank v. Texas, 20 must be passed by a State, a member of Wall. (U. S.) 72; Sprott v. United the Union, and a public body owing States, 20 Wall. (U. S.) 459; Taylor v. obedience and conformity to its consti- Thomas, 22 Wall. (U. S.) 479; Keith v. tution and laws. Scott v. Jones, 5 How. Clark, 97 U. S. 454; Hatch v. BurU.S.) 343. But as to the habits and roughs. i Woods (U. S.) 439; Thomas usage of the Indian tribes, see Cherokee v. Taylor, 42 Miss. 651; s. c., 2 Am. Nation v. Georgia, 5 Pet. (U. S.) 1, 18. Rep. 625. Neither a confederate state

The confederate states had no legal court, nor the legislature of such State, existence as a nation, and the congress were able to authorize the investment of the confederate states had no right of trust moneys in confederate bonds. to pass an act sequestrating the property Horn v. Lockhart, 17 Wall. (U. S.) 570; of loyal owners, and a sale thereof under Van Epps 1'. Walsh, 1 Woods (U. S.) such law is void, and conferred no title 598; Head v. Starke, Chase Dec. (U.

14. Special Phrases Construed. --Certain special phrases used in acts of assembly have received a judicial construction as “any other jurisdiction : "1 "common law jurisdiction;"? "competent jurisdiction ;"3 “concurrent jurisdiction:"4 "final jurisdiction;"



Mo. 440.


S.) 312; Hall v. Hall, 43 Ala. 488 (over. diction within that act.—Re Conner, 39 ruling Watson v. Stone, 40 Ala. 451); Cal. 98; also city courts having a seal Bailey z'. Fitzgerald, 56 Miss. 578 (over- and a clerk and being courts of record, ruling Trotter 7. Trotter, 40 Miss. 704). and the judge being clothed with the

But a trustee who received confederate powers of a county judge, etc.—United treasury notes in payment of a debt due States v. Power, 14 Blatchf. (U. S.) 223; the trust estate is entitled to credit on and police courts, which are courts of proof that he received the same upon record, have been held to be courts of actual compulsion. Moore 2. Mitchell, common law jurisdiction, within the 2 Woods (U. S.) 483; Ferguson v. meaning of the act, and authorized to Lowery, 54 Ala. 510; s. C., 25 Åm. Rep. receive the declarations of intention to

become a citizen, when provided with a The proceedings in the courts of the clerk and a seal. Ex parte Gladhill, 8 confederate States, during the war, could Metc. (Mass.) 168. But not when not not affect a nonresident residing in a provided with a clerk. Ex parte Cregg, loyal State, or a person serving in the 2 Curtis (U. S.), 98; State v. Whittearmy of the United States. Cuyler v. more, 50 N. H. 245. Ferrill, i Abbott (U. S.; 16; Pennywit 3. Competent Jurisdiction. --A statute v. Foote, 27 Ohio St. 600. Contra, in Indiana provides that the sale of a as to proceedings in courts of loyal decedent's real estate hy an administraStates. De Jarnett v. De Giverville, 56 tor shall not be avoided on account of

irregularities it, inter alia, the sale was 1. Any Other Jurisdiction.-By arti. authorized by a court of competent cle 730, subd. 5 of the Code of Criminal jurisdiction, which has been construed Procedure in Texas, it is provided that to mean jurisdiction of the person as all persons are competent to testify in well as of the subject matter. Babbitt criminal actions, except, inter alios, v. Doe, Ind.

355. “all persons who have been or may be By a statute in Massachusetts, any convicted of felony in this State, or in person imprisoned by force of a lawful any other jurisdiction." It has been warrant issued by a court of “compe decided that that expression, “any other tent jurisdiction," shall be entitled to a jurisdiction," is not limited to tribunals writ of personal replevin. It has been of the United States exercising their decided that whatever may be the strict jurisdiction in Texas, but that one con- technical meaning of the word "court," victed of a felony in the courts of a sis the act was clearly intended to include ter State is thereby disqualified. The a warrant for the collection of taxes court, however, rested its decision properly issued to a collector by a board partly on the fact that in the first act of assessors. Aldrich v. Aldrich, 8 on the subject, passed March 6th, 1863, Metc. (Mass.) 102. the language used was, “all persons 4. Concurrent Jurisdiction. Where who have been or who may be con- land in a State was ceded by the State victed of felony in this or in any to the United States, but the act of cesother State of the confederate (United) sion provides that the State shall reStates, or of any other State or king- tain "concurrent jurisdiction" therein dom.” Petner v. State (Tex.), 5 S. W. so far as to serve State process, civil Rep. 210.

and criminal, it has been held that the 2. Common Law Jurisdiction.-It is United States had nevertheless such provided by $ 2165 of the Revised Stat- sole and exclusive jurisdiction over that utes of the United States, that an alien land as was necessary under the act of may be admitted to be a citizen of the congress of 1790, ch. 9 (36), to give the United States by “a court of record of United States courts jurisdiction to try any of the States having common law one accused of committing a larceny jurisdiction and a seal and clerk.” It on said land. United States v. Davis, has been that county courts, being 5 Mason (U. S.) 356. courts of record, and having a seal 5. Final Jurisdiction.-A statute in and a clerk, have common law juris Iowa vests jurisdiction in the county

"further civil and criminal jurisdiction ;"1

criminal jurisdiction ;” I “jurisdiction of the cause;" 2 "jurisdiction over the offence; " 3 “out of the jurisdiction ;


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judge's court in certain cases, and fur- 2. Jurisdiction of the Cause. - It is ther provided that “any person ag- an established principle that the privigrieved by the decision of the county lege of parties or witnesses from the judge may appeal therefrom to the dis- service of process extends to all cases trict court of the proper county which where the attendance of the party or shall have final jurisdiction over the witness is given in any matter pending matter, and shall make such decision in before a lawful tribunal having juris. the premises as justice and equity may diction of the cause. See Greenleaf on require.” From a decision of a district Evidence (14th ed.), § 317, vol. 1, p. 409. court in such a case, on appeal from the It has been held that a party to a suit county court, an appeal was taken to who at the request of his council goes the supreme court of the State, which, into another State, to assist them in however, dismissed the appeal on the taking depositions before a notary pub. ground that there is a clear distinction lic to be used in the cause, is not free between judgment and jurisdiction, from service of process while there. judgment being the decision of the The court saying, “In taking the depolaw, given by the court, as the result sitions the notary performed purely of proceedings therein instituted; and ministerial functions. He could decide jurisdiction having reference to the no questions, nor determine any matter power conferred to take cognizance of affecting the rights of the parties to the and determine causes according to law, suit, nor was he, as we have just seen, and to carry the same into execution, connected with any court or other triand therefore the words "final juris. bunal having the power to do so. diction" inhibited the jurisdiction of an Hence he could in no sense, in the appellate tribunal. Lampson v. Platt, language of Greenleaf, be said to have i lowa 556.

jurisdiction of the cause,' and there. 1. Further Civil and Criminal Juris- fore he does not fall within the category diction.—Under the constitution of New of any of the tribunals contemplated by York, as amended in 1869, certain city the rule in question." Greer v. Young, courts are continued with the powers 120 Ill. 184; s. C., 26 Am. Law. Reg. and jurisdiction they then had, “and 372. such further civil and criminal jurisdic- 3. Jurisdiction Over the Offence. tion as may be conferred by law," It The statute of 7 Geo. IV, c. 64, 20, has been held that when the constitu- remedies in criminal cases, the "want tion speaks of “further civil and crimi- of a proper or perfect venue, where the nal jurisdiction,” it has respect to the court shall appear by the indictment object of the jurisdiction-not to the .. to have had jurisdiction over the territory or the persons of suitors—and offence. It has been decided that the by said article the courts therein men- word jurisdiction, as used in that statute, tioned were continued with the same means local jurisdiction, and not juris. territorial and personal jurisdiction, diction with reference to the nature of with

power to the legislature to enlarge the offence charged. Queen v'. O'Contheir jurisdiction over subjects and mat- nor, 5 Ad. & Ell., N. S. 16 (48 E. C. L.). ters civil and criminal in their nature, 4. Out of the Jurisdiction. — By the and the proper subjects of civil and act of congress of April 30th, 1790, ch. criminal prosecutions. The authority 36, § 8, the United States courts are is to enlarge their jurisdiction as local given jurisdiction to try and punish courts, not to create new courts with certain crimes when committed “out of general jurisdiction throughout the the jurisdiction of any particular State." State. And therefore the legislature These words have been defined to has no power to change the character mean out of the jurisdiction of any parof these courts by divesting them of ticular State of the Union, and not out their locality and extending their juris- of the jurisdiction of any State foreign diction to persons and matters, the sub- or domestic. United States v. Pirates, jects of actions, in other parts of the 5 Wheat. (U. S.) 184. State outside of the localities wherein If a witness is within the State so said courts were established. Landers that process may compel him to testify, v. Staten Island R. Co. 53 N. Y. 450.

although out of the county where the

“similar jurisdiction;"1 "summary jurisdiction ;"2 and “within the jurisdiction." 3



case is tried, he is not "out of the juris- the capacity to determine the merits of diction” within the meaning of sub- the dispute or controversy, and to division 8 of 1870 of the Code of grant the relief asked for. The proviCivil Procedure of California, so as to sion does not give countenance to the permit his testimony given on a former idea that the suit or proceeding is to be trial to be received in evidence. Meyer retained in the circuit court till brought v. Roth, 51 Cal. 582.

to a formal adjudication on the merits, 1. Similar Jurisdiction. — Article 6, when, at that ultimate stage, the court § 14 of the constitution of Virginia must say that the case is not within it, provides for the creation of corporation jurisdiction, after the party successfully or hustings courts "with similar juris- challenging the jurisdiction has been diction which may be given by law to harassed by expenses and injured by circuit courts of this State." It has delay. But it means what it says, that been held that the words similar juris- the dismissal or remanding 'shall be diction" were not intended to restrict, made whenever, 'at any time after the but to enlarge the jurisdiction of these suit is brought or removed to the circuit courts, and to elevate them to the grade court, it shall appear to the satisfaction and dignity of circuit courts, and there. of that court that there is, really and fore it was competent for the legislature substantially, no dispute or controversy to give to the corporation courts juris- of which it has jurisdiction, in the diction to try cases of felony, though sense above pointed out; the right to the jurisdiction in such cases was taken have a review by this court of the order away from the circuit courts. Chahoon dismissing or remanding the suit being v. Commonwealth, 21 Gratt. (Va.) 822. given to the aggrieved party at once,

2. Summary Jurisdiction. — By the instead of his being compelled to await statute

and Vict., ch. 43, the making of such an order at the end justices of the peace are empowered, of a full and formal hearing or trial, on when exercising a summary jurisdiction, issues and proofs, on the merits alleged to submit a case stated to the courts to on either side." BLATCHFORD, J., in get advice on points of law therein in- Rosenbaum v. Bauer, 7 Sup. Ct. Rep. volved. It has been queried whether a 633. proceeding to distrain for rates under The phrase "within the jurisdiction" the English statutes was an exercise of used in extradition treaties has a broadsummary jurisdiction such as would er meaning than that of mere physical enable them to submit such a case territorial jurisdiction, or even of quasi stated. Sweetman v. Guest, L. R., 3 territorial jurisdiction or treaty jurisQ. B. 262.

diction. It has an enlarged meaning 3. Within the Jurisdiction.--The act of equivalent to the words "authority, cogcongress of March 3rd, 1875, $ 5 (18 St. nizance or power of the courts,” and U. S. 470, 472), provides: “That is, in when the person whose extradition is any suit commenced in a circuit court or sought cannot be tried or punished in removed from a State court to a circuit the territory where he is found for the couat of ihe United States, it shall ap- crime chargea, no reason exists why pear to the satisfaction of said circuit any court should strain after a construccourt, at any time after such suit has tion which would prevent his delivery been brought or removed thereto, that up to a jurisdiction where he may be such suit does not really and substan- tried for the offence. Therefore a subtially involve a dispute or controversy ject of Prussia charged with a crime properly within the jurisdiction of committed in Belgium, with which said circuit court

The said country we had no extradition treaty. circuit court shall proceed no further was delivered up to Prussia, whose therein, but shall dismiss the suit or re- courts had jurisdiction to try Prussian mand it to the court from which it was subjects for crimes committed in foreign removed,” etc. In a case arising under countries. Ex parte Stupp or Vogt, said act, the above words "within the u Blatchf. (U.S.) 124; 18 Int. Rev. Rec. jurisdiction” have been defined as fol- 18. lows: "What is meant by the expression In California it is requisite that the 'within the jurisdiction?' It means subscribing witness to a written instru'within the judicial cognizance,' within ment should be produced if he is within

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