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pellate court without jurisdiction cannot be given jurisdiction by consent, but the right to waive defects in taking a case before an appellate tribunal and thus give jurisdiction has been both denied and allowed.2 Neither a change of venue nor an appeal can be made to a court that has not jurisdiction of such cases.3 The

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of the subject matter so as to enable it original jurisdiction over the subject to issue orders or process, there must matter of the action. Danforth et al. be a suit instituted in the court. v. Thompson 34 Iowa 243. And in parte Cohen, 6 Cal. 318. So it has another case it was decided that albeen held in England that the court will though the judgment of a court not not entertain a suit merely for the pur- having jurisdiction of the subject matpose of declaring that a person who ter is void, yet, if on appeal from such claims to have a right which may arise court to a court having original jurishereafter has no such right. Jackson v. diction of the subject matter, the parTurnley, 21 Eng. L. & Eq. Rep. 13. ties voluntarily appear and consent to

In some States an affidavit that the a trial, the judgment in the latter court controversy is real is necessary to give will be binding. Randolph Co. the court jurisdiction of a case stated. Ralls, 18 Ill. 29. Compare Osgood v. Jones v. Hoffman, 18 B. Mon. (Ky.) Thurston, 23 Pick. (Mass.) 110. 656; Sharpe v. Sharpe's Admr., 27 Ind. 2. Where there is no appeal, but a 507; People v. Leland, 40 Ill. 118. mere agreement of the parties to refer

1. Jurisdiction of Appellate Court by the matters in dispute to the judgment Consent.-When an appellate court has of the superior court, this does not give no jurisdiction to review by appeal or the superior court jurisdiction. Knox otherwise the action of the court below, et al. v. Beirne, 4 Ark. 460. it will not take jurisdiction by consent If an appellant does not file an apof the parties. Kelsey 7. Forsyth, 21 peal bond with surety, as required by How. (U. S.) 85; Merrill v. Petty, 16 statute, the superior courts have no juWall. (U. S.) 338; Benford v. Daniels, risdiction of the action, and it may be 20 Ala. 445; Maby v. Dickens, 31 Ala. dismissed at any time before judgment, 243; Little v. Fitts, 33 Ala. 343; Ham- although the appellee has entered a ilton v. Buxton, 5 Ark. 400; People v. general appearance. Santom v. BalRoyal, 1 Scam. (III.) 557; Peak v. Peo- lard, 133 Mass. 464. So in a similar ple, 71 Ill. 278; Fleischman v. Walker, case where a bond was filed, but not in 91 Ill. 318; Smith v. Brown, 136 Mass. the required amount, the court was 416; Tippack v. Briant, 63 Mo. 580; held to have acquired no jurisdiction, Phillips v. Welch, 11 Nev. 187; McFee and a judgment entered on the appeal v. Harris, 25 Pa. St. 102; McCall v. was held to be void. Latham v. EdgerPeachy, i Call ! Va.) 55; Mathie v. Mc- ton, 9 Cow. (N. Y.) 227; and see Clarke Intosh, 40 Wis. 120.

v. Conn, i Munf. (Va.) 160. Compare In like manner, when a court has Trobock v. Caro, 60 Cal. 301. only appellate jurisdiction, there must But in Alabama it has been held by be some decision, judgment, decree or a divided court that the appeal bonds, order entered in the court below before security for costs. required by their code such appellate court can acquire juris. in taking an appeal, are not jurisdictiondiction of the cause, and therefore it al facts to be found by the court to give has been held that where parties them jurisdiction, but are merely the agreed that the jury in the lower court prescribed means of bringing the case should render a verdict for plaintiff, but within the court's pre-existing jurisdicthat judgment should be entered only tion, and, therefore, a joinder in error in favor of him whom the appellate waives all defects therein, and a motion court should decide to be entitled to it, to dismiss the appeal afterwards comes the appellate court had not jurisdiction too late.

Thompson v. Lea, 28 Ala. to give judgment in such a case, and 454. consent would not give them jurisdic- 3. Change of Venue by Consent.-A tion. Ames v. Boland, i Minn. 365. change of venue or appeal from a jusTo same effect are Ginn et al. v. Rogers, tice of the peace cannot be made by 4 Gill (111.) 131; Dicks v. Hatch, 10 consent to a court not having jurisdicIowa 38o. But the contrary was held tion of such cases or appeals. Ex in a case where the appellate court had parte Williams, 4 Yerg. (Tenn.) 579;

lack of jurisdiction over the subject matter accordingly cannot be waived. 1

(c) Jurisdiction Only Given to Judicial Tribunals.-Parties cannot consent to try a case before other than judges, nor at any other than a lawful term of the court.3

11. Jurisdiction Taken Away-a) Generally.-- Jurisdiction when once acquired is taken away by a discontinuance, appeal, writ of error, nonsuit,4 change of venue,5 or removal of the cause. 6

(6) Jurisdiction Taken Away by Statute.The jurisdiction of a court cannot be taken away by statute except by express words or necessary implication. When, however, the jurisdiction of a

Dykeman v. Budd, 3 Wis. 640. Contra, DISCONTINUANCE, EFFECT OF, vol. 5, Salter v. Salter, 6 Bush. (Ky.) 624. A p. 677; ERROR, WRIT OF, Ø 4, Superchange of venue ordinarily puts an end sedeas, vol. 6, p. 819. to the jurisdiction of the first court, 5. Change of Venue.-Upon the mak. ipso facto,but its jurisdiction may be re- ing an order changing the venue of a stored by consent. Taylor v. Atlantic criminal case, the jurisdiction of the & Pacific R., 68 Mo. 397.

court wherein such order is made 1. Waiver of Lack of Jurisdiction.- ceases, and that of the court to which The failure to appear and object to a the cause is sent attaches, and this lat. court's want of jurisdiction of the sub- ter court may compel the clerk of the ject matter in a suit is not a waiver of former court to transmit the papers in the objection. Commissioner's Court the case. Goodhue v. People, 94 Ill. of Talladega v. Thompson, 18 Ala. 37. But see McHenry's Lessee 694.

Wallen, 2 Yerg. (Tenn.) 441. In Pennsylvania, however, it has A court can, however, after making been held by a divided court that if a jus- an order granting a change of venue, tice of the peace has no jurisdiction of set aside the order as inadvertently the subject matter, but no objection is made and retain jurisdiction. Baker et taken by the defendant, who appeals al. v. Fireman's Fund Ins. Co., 73 Cal. from the judgment entered to a court 182. that would have had jurisdiction of the And the jurisdiction of the first court matter, he cannot, after judgment in may be restored by consent. Taylor v. such appellate court, object to the juris- At. & Pac. R., 68 Mo. 397. diction of the justice. Montgomery v.

See the article on CHANGE Heilman, 96 Pa. St. 44.

VENUE, 7; Effect of Change, Am. 2. Jurisdiction Only Given to a Judi- & Eng. Encyc. of Law, vol. 3, p. 105. cial Tribunal.—Jurisdiction cannot be 6. Removal of Cause.—The filing of given by consent to an individual who an application to remove a cause from is not a judge. Andrews v. Wheaton, a State to a United States Court by 23 Conn. 112; Hoagland v. Creed, 81 one authorized to make the application III. 506; Bishop v. Nelson, 83 Ill. 601; and the filing of the required bond, has Cobb v. People, 84 Ill. 511.

the effect to suspend instantly the juris3. Parties cannot consent to try a

diction of the State court. Durham v. case at a term of a court when the Southern L, Ins. Co., 46 Tex. 182. court has not jurisdiction to try such See the article on REMOVAL OF case, or which is not being lawfully Causes. held.

Wic v. Ludwig, 9 Cal. 173; 7. Jurisdiction Taken Away by StatNorwood v. Kenfield, 34 Cal. 329; Bates ute.--"The rule of law is that the v. Gage, 40 Cal. 183; Parker v. Mun- jurisdiction of the superior courts canday, Coxe (N. J.) 70; Germond v. Peo- not be taken away [by statute) except ple, i Hill (N. Y.) 343; Mills v. Com- by express words or necessary implicamonwealth, 13 Pa. St.627. But see Ex tion." King v. Rochdale Lånd Co., 6 parte Bennett, 44 Cal. 84; People v. Eng. L. & Eq. 241, 246; Gould v. Hayes, Jones, 20 Cal. 51.

19 Ala. 438; State v. Moore, 19 Ala. 4. See the articles on those subjects, 514; State 7. Bell, 5 Port. (Ala.) 365; as follows: APPEAL. EFFECT OF, Eng. Commonwealth 7. McCloskey, 2 Rawle & Am. Encyc. of Law, vol. 1, p. 623; (Pa.) 309, 3So; Murfree v. Leeper, i

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court is taken away by a statute, the jurisdiction ceases at once and suits pending cannot be concluded unless there be a saving clause. 1

Overton (Tenn ) 1; Potter's Dwarris on the first grant, but renders the tribunals Statutes 229.

in which it is vested courts of concurThe jurisdiction of a State court is rent, not of exclusive jurisdiction. not taken away by implication by an Hay's Admx. v. McNealy, 16 Fla. 409; act of congress. Člaflin v. Housemran, Bedwell v. Jones, 9 Lea (Tenn.) 168. 93 U. S. 130; James et al. v. Belding See cases cited in § 7, Exclusive Juriset al., 33 Ark. 536; Wente v. Young, 12 diction, p. 290; note 2, Constitutional Hun (N. Y.) 220; Thompson v. Mor- Jurisdiction, ante, p. 291, and note 2, ton, 2 Ohio St. 26.

Power of State Legislature Over State The last bankrupt act, provided that Courts, ante, note 2, p. 264. an assignment in bankruptcy shall dis- 1. Whenever a statute giving jurissolve any "attachment made within diction to a court in particular cases is four months next preceding the com- repealed, the jurisdiction of the court, mencement of the proceedings." The in suits pending at the time of the redischarge in bankruptcy has therefore peal is taken away unless there be a been held not to release a lien acquired saving clause. 5 Blackf. (Ind.) 195; by attachment more than four months Kruse v. Wilson, 79 Ill. 233; Carson v. prior to the bankruptcy proceeding, and Commissioners, 64 N. Car. 566. that the State courts still have jurisdic- Such suits have been held not to be tion to enforce that lien.

Doe v. affected where the repealing act con. Childress, 21 Wall. (U. S.) 642; Elliott tains a substantial re-enactment of the v. Booth, 44 Tex. 180; Hancock v. Hen- provisions under which the suits were derson, 45 Tex. 479.

brought. McMullen v. Guest, 6 Tex. So State courts have jurisdiction to 275 aid in the enforcement of the bankrupt So where exclusive jurisdiction in law, and may set aside a conveyance or such cases is given to another court. mortgage made fraudulent by such laws. Sprigs v. State, 2 Ind. 75; State v. Isett v. Stuart, 80 Ill. 404; or entertain Judge, 22 La. An. 565; Knox v. Gursuits by assignees to collect the assets of nett, 28 La. An. 601. the bankrupt. Claflin v. Houseman, 93 It has, however, been held that if a U. S. 130; Wente 2'. Young, 12 Hun court has lawfully exercised jurisdic(N. Y.) 220; Burlingame v. Parce, 12 tion in a proceeding, and subsequently Hun (N. Y.) 144; or enjoin a suit to such jurisdiction is given exclusively to obtain an unlawful ien on the bank- another tribunal, the first court may rupt's property. Bratton v. Anderson, continue to act in the proceeding pend5 S. Car. 504:

ing before it. Anderson v. Henzey, 7 On the division of a county the juris- Weekly Notes (Pa.) 39. Compare diction of the courts of the new county Gould v. Hayes, 19 Ala. 438. extends over offences on which no pro- Where a special tribunal is created ceedings are pending committed within by statute on the repeal of the act withthe territorial limits of the county, out any saving clause, the court's power whether before or after its incorpora- and authority ceases, and it cannot protion. State v. Jackson, 39 Me. 291. So ceed to finish the cases already begun. the new county courts may enforce a Commonwealth v. Commissioners, 6 judgment in an action of ejectment for Pick. (Mass.) 501. purchase money for land lying within If there be a saving clause, an action the territorial limits of the new county, begun on the day the act was approved when the judgment was recovered in will be discontinued only on proof that the courts of the old county. Heath it was begun at a later hour than that et al. v. Gardner, 10 Weekly Notes at which the act

approved.

Kennedy v. Palmer, 6 Gray (Mass.) Judicial power and jurisdiction is not 316. in its nature exclusive. The general A person indicted for an offence rule is that like judicial authority is created by statute cannot be convicted possessed by different courts, and a after a repeal of the statute, unless the grant of jurisdiction to one court, even repealing statute contain a saving if it be of the same character as that clause. Taylor v. State, 7 Blackf. (Ind.) possessed by another, does not repeal 93.

was

(Pa.) 495:

(c) Jurisdiction Not Taken Away by Consent.The consent of parties cannot oust a court of its jurisdiction, and, therefore, a contract not to resort to a judicial forum in the settlement of disputes is not binding at law. 1

(d) Jurisdiction Not Ousted by Subsequent Events.—When jurisdiction has once attached, it will not be ousted by subsequent events, as change of residence or condition of the parties,” the amount finally recovered not being within the jurisdictional sum.3 So where the right to sue in a certain court depends upon the residence of some of the defendants, or location of part of the land in suit, and recovery is not bad as to such defendants or such

Mass. 275.

1. Jurisdiction Not Taken Away by States v. Dawson, 15 How. (U. S.) 467; Consent.-An agreement in articles of Culver v. Woodruff Co., 5 Dill. (U S.) copartnership and in contracts for 392; Gilmer v. Grand Rapids, 16 Fed. work, etc., to refer all matters in dis- Rep. 708; Raymond v. Butterworth, pute to arbitrators, cannot oust the 139 Mass. 471; Tapley v. Martin, 116 courts of their jurisdiction. Pearl v. Harris, 121 Mass. 390; Gray v. Wilson, When, therefore, jurisdiction has 4 Watts (Pa.) 39; Hart 7'. Lanman, 29 been acquired, and one party thereto Barb. (N. Y.) 410; Haggart v. Morgan, dies, his representative may be substi5 N. Y. 422.

tuted, and the jurisdiction is not af: Agreements not to appeal cannot fected by the citizenship of such repredivest the appellate court of jurisdic- sentative. Clarke v. Matthewson, 12 tion. Muldrow v. Norris, 2 Cal. 74; Pet. (U. S.) 164, reversing Clarke v. Fahs v. Darling, 82 Ill. 142. Contra Matthewson, 2 Sumn (U. S.) 262; Townsend v. Masterson etc. Stone Trigg v. Conway, Hemp. (U. S.) 711; Dressing Co., 15 N Y. 587; Bingham's Upton v. New Jersey S. R. Co., 25 N. Truste es v. Guthrie, 19 Pa. St. 418; J. Eq. 372. Watson v. Wetter, 91 Pa. St. 385; Nor does the death of the defendant Hostet ter's Appeal, 92 Pa. St. 132. transfer the case to the probate court.

But an agreement not to appeal to be Bussy & Co. v. Nelson, 30 La. An. 25. enforced must be indubitable. Stedeker But this rule applies only when jurisv. Bernard, 93 N. Y.589.

diction has actually vested by a suit. An agreement not to appeal does not Thaxter v. Hatch, 6 McLean (U.S.) 68. preclude a writ of error.

Putnam v. The appointment of a person as conChurchill, 4 Mass. 516.

sul of a foreign power does not work an When a by-law of a beneficial asso- abatement of a suit previously comciation provides that members must menced against him in a State court. arbitrate their claims against the asso- Koppel v. Heinrichs, 1 Barb. (N. Y.) ciation, a member's refusing to arbitrate, 449. and bringing an action against the as- 3. The presumptions are always in sociation, is no cause for expulsion. favor of a court's jurisdiction, thereSweeney v, Hugh McLaughlin Ben. fore when such jurisdiction is limited Soc. 14 Weekly Notes of Cases (Pa.) as to amount, and it appears that plain466.

tiff had invoked its jurisdiction in good 2. Jurisdiction Not Taken Away by faith, fairly believing in its validity, the Subsequent Events.--The jurisdiction jurisdiction will be sustained, though of a court depends upon the state the amount recovered be less than the of things at the time the action jurisdictional sum. Stanley v. Barker, is brought. Once vested, it is not 25 Vt. 510; Spafford v. Richardson, 13 ousted by subsequent events. Thus no Vt. 224; Waters v. Langdon, 16 Vt. 570. change in the residence of parties can Interest accruing subsequently to the take away a jurisdiction that has once beginning of the suit will not defeat the attached. Morgan's Heirs t:. Morgan, jurisdiction of the court, if limited in 2 Wheat (U. S.) 290; Mollan v. Tor- amount. Tindall v. Meeker, 1 Scam. Tance, 9 Wheat (U. S.) 537; Dunn v. (III.) 137; Mitcheltree v. Sparks, I Clarke's Pet. (U. S.) 1; Connolly v. Scam. (Ill.) 198; Trego v. Lewis, 58 Taylor, 2 Pet. (U. S.) 556; United Pa. St. 463. 12 C. of L-20

305

land, and the like.2 A failure to comply with a jurisdictional requirement of a statute will oust the jurisdiction, but it may not do so for all purposes. And one convicted of a criminal offence may lose his right to appeal by an escape. 4

12. Jurisdiction Inquired Into-(a) When.--Want of jurisdiction may be taken advantage of at any time 5 in the trial court, even

case.

1. In Mississippi, the joint makers of fraudulently represented he owned, but a note may be sued in the county where to which he had no title. Rogers z'. any one of them resides. When such Perdue, 7 Black. (Ind.) 302; Harvey v. an action had been brought it was held Dakin, 12 Ind. 481. See, however, that the plaintiff could discontinue as to Ohse v. Bruss, 45 Wis. 442; and the the maker residing in that county, and article on JUSTICES OF THE Peace. take judgment by default against the A court'having obtained jurisdiction others. Read v. Renaud, 6 Sm. & M. in a criminal case does not lose juris79. A contrary doctrine is held in Ken- diction because one of its members, and tucky where there is a similar statute, one necessary to make a duly organized which, however, expressly provides that court, is called from the bench as a wit"should a verdict not be found against ness in the action and testifies as such. the defendant or defendants resident in People v. Dohring, 59 N. Y. 374; Tuttle the county where the action is com- v. People, 36 N. Y.431. menced, judgment shall not be rendered 3. When an attachment proceeding in such action.” Brown v. McKee, i has been begun without personal service J. J. Marsh. (Ky.) 471; Parish r'. Old- on the defendant, the court will lose ham, 3 J. J. Marsh. (Ky.) 541; Rogers jurisdiction by failure to serve the dev. Hagan, 6 J. J. Marsh. (Ky.) 578; fendant by publication as required by Cowan v. Montgomery, 7 J. J. Marsh. the statute, and may not proceed further (ky.) 299;

in the

Millar v. Babcock, 29 When land lies in different counties Mich. 526. in a State, State statutes frequently pro- But jurisdiction may be lost for one vide for the bringing of the suit in purpose but retained for other purposes, either county. It has heen held under as on failure to perfect a mechanic's the Arkansas statutes that when some lien, a personal judgment may be seof the defendants also resided in the cured in the same proceeding. Darrow county where the suit was brought, the v. Morgan, 65 N. Y. 333. jurisdiction of the court was not ousted 4. When one convicted of a criminal by a decree dismissing the suit as to the offence, appeals, and then escapes, and land lying in the county of the former. the appeal is dismissed therefor, the Estes v. Martin, 34 Ark. 410.

jurisdiction of the appellate court is 2. In a case where the United States ousted by the escape, and if he be subhad brought suit against a defendant sequently apprehended and sentenced, and trustee, seeking payment out of the he cannot apppeal again. Brown v. trust fund, the court refused to hold State, 5 Tex. App. 126. that its jurisdiction had been ousted by 5. Jurisdiction When Inquired Into.the fact that a sum of money belonging It is a settled rule that want of jurisdicto the defendant had come into the tion may be taken advantage of at any hands of the United States, sufficient time. Wildman v. Rider, 23 Conn. 172; to satisfy its claim. United States v. Brownfield v. Weicht, 9 Ind. 394; WickMvers, 2 Brock. (U. S.) 516.

liffe v. Bailey, 5 B. Mon. (Ky.) 253, The accidental destruction of a bond 260; Riley v. Lowell, 117 or note after an action has been com- Delafield v. Illinois, 2 Hill (N. Y.) menced upon it will not oust the court 159; Stearly's Appeal, 3 Grant (Pa.) of its jurisdiction. Bliss v. Covington 270; Borough of Little Medows, 28 Pa. etc. Turnpike Co., 9 Dana (Ky.) 265. St. 256; Small's Appeal, 23 Weekly

So it has been held that if a suit is Notes 20. brought on a promissory note in a court A party cannot be estopped or prewhich has no authority to try titles to cluded from making the objection at real estate, the jurisdiction of the court any time and in any court, for it is an is not ousted by the fact that the note objection which lies at the foundation was given in consideration of a convey

of the whole case. Coleman's Appeal, ance of certain land which plaintiff 75 Pa. St. 441, 460; Doctor v. Hart.

Mass. 76;

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