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by Consent.

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

of the subject matter so as to enable it to issue orders or process, there must be a suit instituted in the court. parte Cohen, 6 Cal. 318. So it has Ex been held in England that the court will not entertain a suit merely for the purpose of declaring that a person who claims to have a right which may arise hereafter has no such right. Jackson v. Turnley, 21 Eng. L. & Eq. Rep. 13.

In some States an affidavit that the controversy is real is necessary to give the court jurisdiction of a case stated. Jones v. Hoffman, 18 B. Mon. (Ky.) 656; Sharpe v. Sharpe's Admr., 27 Ind. 507; People v. Leland, 40 Ill. 118.

1. Jurisdiction of Appellate Court by Consent. When an appellate court has no jurisdiction to review by appeal or otherwise the action of the court below, it will not take jurisdiction by consent of the parties. Kelsey v. Forsyth, 21 How. (U. S.) 85; Merrill v. Petty, 16 Wall. (U. S.) 338; Benford v. Daniels, 20 Ala. 445; Maby v. Dickens, 31 Ala. 243; Little v. Fitts, 33 Ala. 343; Hamilton v. Buxton, 5 Ark. 400; People v. Royal, 1 Scam. (Ill.) 557; Peak v. People, 71 Ill. 278; Fleischman v. Walker, 91 Ill. 318; Smith v. Brown, 136 Mass. 416; Tippack v. Briant, 63 Mo. 580; Phillips v. Welch, 11 Nev. 187; McFee v. Harris, 25 Pa. St. 102; McCall v. Peachy, I Call (Va.) 55; Mathie v. McIntosh, 40 Wis. 120.

In like manner, when a court has only appellate jurisdiction, there must be some decision, judgment, decree or order entered in the court below before such appellate court can acquire juris diction of the cause, and therefore it has been held that where parties agreed that the jury in the lower court should render a verdict for plaintiff, but that judgment should be entered only in favor of him whom the appellate court should decide to be entitled to it, the appellate court had not jurisdiction to give judgment in such a case, and consent would not give them jurisdiction. Ames v. Boland, I To same effect are Ginn et al. v. Rogers, Minn. 365. 4 Gill (Ill.) 131; Dicks v. Hatch, 10 Iowa 3S0. But the contrary was held in a case where the appellate court had

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original jurisdiction over the subject matter of the action. Danforth et al. v. Thompson 34 Iowa 243. And in though the judgment of a court another case it was decided that alhaving jurisdiction of the subject matter is void, yet, if on appeal from such not court to a court having original jurisdiction of the subject matter, the parties voluntarily appear and consent to will be binding. Randolph Co. v. a trial, the judgment in the latter court Ralls, 18 Ill. 29. Compare Osgood v. Thurston, 23 Pick. (Mass.) 110.

2. Where there is no appeal, but a the matters in dispute to the judgment mere agreement of the parties to refer of the superior court, this does not give et al. v. Beirne, the superior court jurisdiction. Knox Ark. 460.

peal bond with surety, as required by If an appellant does not file an apstatute, the superior courts have no jurisdiction of the action, and it may be dismissed at any time before judgment, although the appellee has entered a general appearance. Santom v. Ballard, 133 Mass. 464. So in a similar the required amount, the court was case where a bond was filed, but not in held to have acquired no jurisdiction, and a judgment entered on the appeal was held to be void. Latham v. Edgerton, 9 Cow. (N. Y.) 227; and see Clarke Trobock v. Caro, 60 Cal. 301. v. Conn, I Munf. (Va.) 160. Compare

But in Alabama it has been held by security for costs. required by their code a divided court that the appeal bonds, in taking an appeal, are not jurisdictional facts to be found by the court to give them jurisdiction, but are merely the prescribed means of bringing the case within the court's pre-existing jurisdiction, and, therefore, a joinder in error waives all defects therein, and a motion too late. Thompson v. Lea, 28 Ala. to dismiss the appeal afterwards comes 454.

3. Change of Venue by Consent.-A tice of the peace cannot be made by change of venue or appeal from a justion of such cases consent to a court not having jurisdicparte Williams, 4 Yerg. (Tenn.) 579; or appeals. Ex

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, change of venue,5 of removal of the cause.6

(b) 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, Salter v. Salter, 6 Bush. (Ky.) 624. A change of venue ordinarily puts an end to the jurisdiction of the first court, ipso facto,but its jurisdiction may be restored by consent. Taylor v. Atlantic & Pacific R., 68 Mo. 397

1. Waiver of Lack of Jurisdiction.The failure to appear and object to a court's want of jurisdiction of the subject matter in a suit is not a waiver of the objection. Commissioner's Court of Talladega v. Thompson, 18 Ala. 694.

In Pennsylvania, however, it has been held by a divided court that if a justice of the peace has no jurisdiction of the subject matter, but no objection is taken by the defendant, who appeals from the judgment entered to a court that would have had jurisdiction of the matter, he cannot, after judgment in such appellate court, object to the jurisdiction of the justice. Montgomery v. Heilman, 96 Pa. St. 44.

DISCONTINUANCE, EFFECT OF, vol. 5, p. 677; ERROR, WRIT OF, § 4, Supersedeas, vol. 6, p. 819.

5. Change of Venue.-Upon the making an order changing the venue of a criminal case, the jurisdiction of the court wherein such order is made ceases, and that of the court to which the cause is sent attaches, and this latter court may compel the clerk of the former court to transmit the papers in the case. Goodhue v. People, 94 Ill. 37. But see McHenry's Lessee v. Wallen, 2 Yerg. (Tenn.) 441.

A court can, however, after making an order granting a change of venue, set aside the order as inadvertently made and retain jurisdiction. Baker et al. v. Fireman's Fund Ins. Co., 73 Cal. 182.

And the jurisdiction of the first court may be restored by consent. Taylor v. At. & Pac. R., 68 Mo. 397.

See the article on CHANGE OF VENUE, §7; Effect of Change, Am. & Eng. Encyc. of Law, vol. 3, p. 105.

6. Removal of Cause.-The filing of an application to remove a cause from a State to a United States Court by one authorized to make the application and the filing of the required bond, has the effect to suspend instantly the jurisdiction of the State court. Durham v. Southern L. Ins. Co., 46 Tex. 182.

See the article on REMOVAL OF CAUSES.

2. Jurisdiction Only Given to a Judicial Tribunal.—Jurisdiction cannot be given by consent to an individual who

not a judge. Andrews v. Wheaton, 23 Conn. 112; Hoagland v. Creed, 81 Ill. 506; Bishop v. Nelson, 83 Ill. 601; Cobb v. People, 84 Ill. 511.

3. Parties cannot consent to try a case at a term of a court when the court has not jurisdiction to try such case, or which is not being lawfully held. Wicks v. Ludwig, Cal. 173; Norwood v. Kenfield, 34 Cal. 329; Bates v. Gage, 40 Cal. 183; Parker v. Munday, Coxe (N. J.) 70; Germond v. People, 1 Hill (N. Y.) 343; Mills v. Commonwealth, 13 Pa. Št. 627. But see Ex parte Bennett, 44 Cal. 84; People v. Jones, 20 Cal. 51.

4. See the articles on those subjects, as follows: APPEAL, EFFECT OF, Eng. & Am. Encyc. of Law, vol. 1, p. 623;

7. Jurisdiction Taken Away by Statute.-"The rule of law is that the jurisdiction of the superior courts cannot be taken away [by statute] except by express words or necessary implication." King v. Rochdale Land Co., 6 Eng. L. & Eq. 241, 246; Gould v. Hayes, 19 Ala. 438; State v. Moore, 19 Ala. 514; State v. Bell, 5 Port. (Ala.) 365; Commonwealth 7. McCloskey, 2 Rawle (Pa.) 369, 380; Murfree v. Leeper, I

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 Statutes 229.

The jurisdiction of a State court is not taken away by implication by an act of congress. Claflin v. Houseman, 93 U. S. 130; James et al. v. Belding et al., 33 Ark. 536; Wente v. Young, 12 Hun (N. Y.) 220; Thompson v. Morton, 2 Ohio St. 26.

The last bankrupt act, provided that an assignment in bankruptcy shall dissolve any "attachment made within four months next preceding the commencement of the proceedings." The discharge in bankruptcy has therefore been held not to release a lien acquired by attachment more than four months prior to the bankruptcy proceeding, and that the State courts still have jurisdiction to enforce that lien. Doe v. Childress, 21 Wall. (U. S.) 642; Elliott v. Booth, 44 Tex. 180; Hancock v. Henderson, 45 Tex. 479.

So State courts have jurisdiction to aid in the enforcement of the bankrupt law, and may set aside a conveyance or mortgage made fraudulent by such laws. Isett v. Stuart, So Ill. 404; or entertain suits by assignees to collect the assets of the bankrupt. Claflin v. Houseman, 93 U. S. 130; Wente v. Young, 12 Hun (N. Y.) 220; Burlingame v. Parce, 12 Hun (N. Y.) 144; or enjoin a suit to obtain an unlawful lien on the bankrupt's property. Bratton v. Anderson, 5 S. Car. 504.

On the division of a county the jurisdiction of the courts of the new county extends over offences on which no proceedings are pending committed within the territorial limits of the county, whether before or after its incorporation. State v. Jackson, 39 Me. 291. So the new county courts may enforce a judgment in an action of ejectment for purchase money for land lying within the territorial limits of the new county, when the judgment was recovered in the courts of the old county. Heath et al. v. Gardner, 10 Weekly Notes (Pa.) 495:

the first grant, but renders the tribunals in which it is vested courts of concur

Judicial power and jurisdiction is not in its nature exclusive. The general rule is that like judicial authority is possessed by different courts, and a grant of jurisdiction to one court, even if it be of the same character as that possessed by another, does not repeal

rent, not of exclusive jurisdiction. Hay's Admx. v. McNealy, 16 Fla. 409; Bedwell v. Jones, 9 Lea (Tenn) 168. See cases cited in § 7, Exclusive Jurisdiction, p. 290; note 2, Constitutional Jurisdiction, ante, p. 291, and note 2, Power of State Legislature Over State Courts, ante, note 2, p. 264.

1. Whenever a statute giving jurisdiction to a court in particular cases is repealed, the jurisdiction of the court, in suits pending at the time of the repeal is taken away unless there be a saving clause. 5 Blackf. (Ind.) 195; Kruse v. Wilson, 79 Ill. 233; Carson v. Commissioners, 64 N. Car. 566.

Such suits have been held not to be affected where the repealing act contains a substantial re-enactment of the provisions under which the suits were brought. McMullen v. Guest, 6 Tex. 275.

So where exclusive jurisdiction in such cases is given to another court. Sprigs v. State, 2 Ind. 75; State v. Judge, 22 La. An. 565; Knox v. Gurnett, 28 La. An. 601.

It has, however, been held that if a court has lawfully exercised jurisdiction in a proceeding, and subsequently such jurisdiction is given exclusively to another tribunal, the first court may continue to act in the proceeding pending before it. Anderson v. Henzey, 7 Weekly Notes (Pa.) 39 Compare Gould v. Hayes, 19 Ala. 438.

Where a special tribunal is created by statute on the repeal of the act without any saving clause, the court's power and authority ceases, and it cannot proceed to finish the cases already begun. Commonwealth v. Commissioners, 6 Pick. (Mass.) 501.

If there be a saving clause, an action begun on the day the act was approved will be discontinued only on proof that it was begun at a later hour than that at which the act was approved. Kennedy v. Palmer, 6 Gray (Mass.) 316.

A person indicted for an offence created by statute cannot be convicted after a repeal of the statute, unless the repealing statute contain a saving clause. Taylor v. State, 7 Blackf. (Ind.) 93.

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(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

1. Jurisdiction Not Taken Away by Consent. An agreement in articles of copartnership and in contracts for work, etc., to refer all matters in dispute to arbitrators, cannot oust the courts of their jurisdiction. Pearl v. Harris, 121 Mass. 390; Gray v. Wilson, Watts (Pa.) 39; Hart v. Lanman, 29 Barb. (N. Y.) 410; Haggart v. Morgan, 5 N. Y. 422.

4

Agreements not to appeal cannot
divest the appellate court of jurisdic-
tion. Muldrow v. Norris, 2 Cal. 74;
Fahs v. Darling. S2 Ill. 142. Contra
Townsend V. Masterson etc. Stone
Dressing Co., 15 N Y. 587; Bingham's
Trustees v. Guthrie, 19 Pa. St. 418;
Watson v. Wetter, 91 Pa. St. 385;
Hostetter's Appeal, 92 Pa. St. 132.

But an agreement not to appeal to be
enforced must be indubitable. Stedeker
v. Bernard, 93 N. Y. 589.

An agreement not to appeal does not preclude a writ of error. Putnam v. Churchill, 4 Mass. 516.

When a by-law of a beneficial association provides that members must arbitrate their claims against the association, a member's refusing to arbitrate, and bringing an action against the association, is no cause for expulsion. Sweeney v. Hugh McLaughlin Ben. Soc. 14 Weekly Notes of Cases (Pa.) 466.

2. Jurisdiction Not Taken Away by Subsequent Events.--The jurisdiction of a court depends upon the state of things at the time the action is brought. Once vested, it is not ousted by subsequent events. Thus no change in the residence of parties can take away a jurisdiction that has once attached. Morgan's Heirs v. Morgan, 2 Wheat. (U. S.) 290; Mollan v. Torrance, 9 Wheat (U. S.) 537; Dunn v. Clarke, 8 Pet. (U. S.) 1; Connolly v. Taylor, 2 Pet. (U. S.) 556; United

12 C. of L-20

States v. Dawson, 15 How. (U. S.) 467; Culver v. Woodruff Co., 5 Dill. (U ́S.) 392; Gilmer v. Grand Rapids, 16 Fed. Rep. 708; Raymond v. Butterworth, 139 Mass. 471; Tapley v. Martin, 116 Mass. 275.

When, therefore, jurisdiction has been acquired, and one party thereto dies, his representative may be substituted, and the jurisdiction is not af fected by the citizenship of such representative. Clarke v. Matthewson, 12 Pet. (U. S.) 164, reversing Clarke v. Matthewson, 2 Sumn (U. S.) 262; Trigg v. Conway, Hemp. (U. S.) 711; Upton v. New Jersey S. R. Co., 25 N. J. Eq. 372.

Nor does the death of the defendant transfer the case to the probate court. Bussy & Co. v. Nelson, 30 La. An. 25.

But this rule applies only when jurisdiction has actually vested by a suit. Thaxter v. Hatch, 6 McLean (Ŭ. S.) 68.

The appointment of a person as consul of a foreign power does not work an abatement of a suit previously commenced against him in a State court. Koppel v. Heinrichs, 1 Barb. (N. Y.) 449.

3. The presumptions are always in favor of a court's jurisdiction, therefore when such jurisdiction is limited as to amount, and it appears that plaintiff had invoked its jurisdiction in good faith, fairly believing in its validity, the jurisdiction will be sustained, though

the amount recovered be less than the

jurisdictional sum. Stanley v. Barker, 25 Vt. 510; Spafford v. Richardson, 13 Vt. 224; Waters v. Langdon, 16 Vt. 570.

Interest accruing subsequently to the beginning of the suit will not defeat the jurisdiction of the court, if limited in amount. Tindall v. Meeker, 1 Scam. (Ill.) 137; Mitcheltree v. Sparks, I Scam. (I.) 198; Trego v. Lewis, 58 Pa. St. 463.

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land,1 and the like. A failure to comply with a jurisdictional requirement of a statute will oust the jurisdiction, but it may not do so for all purposes.3 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 in the trial court, even

1. In Mississippi, the joint makers of a note may be sued in the county where any one of them resides. When such an action had been brought it was held that the plaintiff could discontinue as to the maker residing in that county, and take judgment by default against the others. Read v. Renaud, 6 Sm. & M. 79. A contrary doctrine is held in Kentucky where there is a similar statute, which, however, expressly provides that "should a verdict not be found against the defendant or defendants resident in the county where the action is commenced, judgment shall not be rendered in such action." Brown v. McKee, 1 J. J. Marsh. (Ky.) 471; Parish v. Oldham, 3 J. J. Marsh. (Ky.) 541; Rogers v. Hagan, 6 J. J. Marsh. (Ky.) 578; Cowan v. Montgomery, 7 J. J. Marsh. (Ky.) 299.

When land lies in different counties in a State, State statutes frequently provide for the bringing of the suit in either county. It has heen held under the Arkansas statutes that when some of the defendants also resided in the county where the suit was brought, the jurisdiction of the court was not ousted by a decree dismissing the suit as to the land lying in the county of the former. Estes v. Martin, 34 Ark. 410.

2. In a case where the United States had brought suit against a defendant and trustee, seeking payment out of the trust fund, the court refused to hold that its jurisdiction had been ousted by the fact that a sum of money belonging to the defendant had come into the hands of the United States, sufficient to satisfy its claim. United States v. Myers, 2 Brock. (U. S.) 516.

The accidental destruction of a bond or note after an action has been commenced upon it will not oust the court of its jurisdiction. Bliss v. Covington etc. Turnpike Co., 9 Dana (Ky.) 265.

So it has been held that if a suit is brought on a promissory note in a court which has no authority to try titles to real estate, the jurisdiction of the court is not ousted by the fact that the note was given in consideration of a conveyance of certain land which plaintiff

fraudulently represented he owned, but to which he had no title. Rogers v. Perdue, 7 Black. (Ind.) 302; Harvey v. Dakin, 12 Ind. 481. See, however, Ohse v. Bruss, 45 Wis. 442; and the article on JUSTICES OF THE PEACE.

A court having obtained jurisdiction in a criminal case does not lose jurisdiction because one of its members, and one necessary to make a duly organized court, is called from the bench as a witness in the action and testifies as such. People v. Dohring, 59 N. Y. 374; Tuttle v. People, 36 N. Y.431.

3. When an attachment proceeding has been begun without personal service on the defendant, the court will lose jurisdiction by failure to serve the defendant by publication as required by the statute, and may not proceed further in the case. Millar v. Babcock, 29 Mich. 526.

But jurisdiction may be lost for one purpose but retained for other purposes, as on failure to perfect a mechanic's lien, a personal judgment may be secured in the same proceeding. Darrow v. Morgan, 65 N. Y. 333.

4. When one convicted of a criminal offence, appeals, and then escapes, and the appeal is dismissed therefor, the jurisdiction of the appellate court is ousted by the escape, and if he be subsequently apprehended and sentenced, he cannot apppeal again. Brown v. State, 5 Tex. App. 126.

5. Jurisdiction When Inquired Into.— It is a settled rule that want of jurisdiction may be taken advantage of at any time. Wildman v. Rider, 23 Conn. 172; Brownfield v. Weicht, 9 Ind. 394; Wickliffe v. Bailey, 5 B. Mon. (Ky.) 253, 260; Riley v. Lowell, 117 Mass. 76; Delafield v. Illinois, 2 Hill (N. Y.) 159; Stearly's Appeal, 3 Grant (Pa.) 270; Borough of Little Medows, 28 Pa. St. 256; Small's Appeal, 23 Weekly Notes 20.

A party cannot be estopped or precluded from making the objection at any time and in any court, for it is an objection which lies at the foundation of the whole case. Coleman's Appeal, 75 Pa. St. 441, 460; Doctor v. Hart

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