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after judgment has been entered. The want of jurisdiction in the trial court may be inquired into in the appellate court.2
(6) By What Court.-Prima facie every court has the right in the first instance to determine its own jurisdiction.3 But an appellate court is empowered and is bound to inquire into the jurisdiction of the lower court,4 and also into its own jurisdiction.
man, 74 Ind. 221; Mathive v. McIn- superior court by applying for a protosh, 40 Wis. I 20; Thompson v. Steam- hibition. State v. Scott, i Bailey (S. boat, 2 Ohio St. 26.
Car.) L. 294. Where the facts necessary to give a A court possesses power and jurisdiccourt jurisdiction are stated in a bill for tion to determine whether it has authordivorce, but they are denied by the ity to entertain a particular controanswer, the question of jurisdiction be- versy, although its decision and the comes one of fact to be determined on the law be that it has no such authority, hearing, and is not waived; and when and it therefore dismisses the suit. during the progress of the trial, want King v. Poole, 36 Barb. (N. Y.) 242. of jurisdiction clearly appears it is the The first point decided by any court, duty of the court to dismiss the bill. although it may not be in terms, is that Way v. Way, 64 Ill. 406.
the court has jurisdiction, otherwise it 1. Jurisdiction Inquired Into After would not proceed to determine the Judgment.-In all cases, even though rights of the parties. Clary v. Hoagjudgment has been entered in the land, 6 Cal. 685. cause, the court should and will at any See the article
PROHIBITION, time vacate the judgment, and declare Writ of. the same null and void, on motion, if it 4. Jurisdiction Inquired Into in Apappear that it had not jurisdiction. Ex pellate Court.-An appellate court is parte Crenshaw, 15 Pet. (U. S.) 119; bound to inquire in every case, whether Harris v. Hardeman, 14 How. (U. S.) the facts presented by the record give 334; Shuford v. Cain, 1 Abbott (U. S.) jurisdiction. Stamps v. Newton, 3 302; Crane Admr. v. Barry, 47 Ga. 476; How. (Miss.) 34; Borough of Little Forman v. Carter, 9 Kan. 674; Graham Meadows, 28 Pa. St. 256. See the act v. Ringo, 67 Mo. 324; Holmes v. of congress of February 25, 1889, c. 236, Horne, 8 How. Pr. (N. Y.) 383; Hallett & i, providing that the Supreme Court of v. Righters, 13 How. Pr.(N. Y )43; Pitt the United States may review all ques2. Davison, 37 Barb. (N. Y.) 97; tions of jurisdiction of court below, Keaton v. Banks et al., 10 Ired. (N. without reference to the amount in Car.) L. 381; Hervey & Co.v. Edmunds, controversy. 68 N. Car. 243; In re College street, 11 5. In a singular case a defendant had R.I. 472; Franks v. Lockey, 45 Vt. 395; appealed to the court of errors in New Hooe 7. Barber, 4 Hen. & M. (Va.) York on the ground that he was a 439; Mathie v. McIntosh, 40 Wis. 120. consul general of a foreign governSee Cannon v. Reynolds, 5 Ell. & B. ment, and exempt from suit in a State 301.
court, and that court decided that the 2. See infra, note 4, Jurisdiction consuls of foreign countries are not so Enquired Into in Appellate Court. exempt, and affirmed the judgment of
3. Jurisdiction Inquired Into by What the court below. The defendant then Court.-Prima facie every court pos- appealed to the Supreme Court of the sesses the power of judging of its own United States, which latter court decided jurisdiction, and where a party pleads that the defendant was exempt, and reto the jurisdiction, the decision of even manded the case with directions to the an inferior court, in favor of its juris- court of errors in New York to conform diction, is ordinarily conclusive its judgment to such decision. The upon the parties as its judgment upon a court of errors thereupon again affirmed matter confessedly within its jurisdic- the judgment of the lower court, on the tion; the only exception is where the ground that the fact that the defendant want of jurisdiction appears on the face was such consul general did not appear of the proceedings. A party, however, in the record of the case, and on motion is not compelled to submit the question dismissed its writ of error to the lower of jurisdiction to the decision of the in- court. On a second appeal to the suferior court, but may remove it to the preme court this action was affirmed,
And since want of jurisdiction renders all proceedings void, the jurisdiction of a court may be inquired into collaterally."
MR. CHIEF JUSTICE MARSHALL say- being present, the lower court decided ing: “The court has felt great difficulty that it was proper for them to examine on this question. The importance of into the right of the appellate court so preserving uniformity in the construc- to do. People v. Clark, i Park. Cr. C. tion of the constitution, laws and (N. Y.) 360. treaties of the United States must be 1. Jurisdiction Inquired Into Collaterfelt by all; and the impracticability of ally.—The jurisdiction of any maintaining this uniformity, unless the exercising authority over a subject may power of supervising all judgments in be inquired into in every other court which the constitution, laws or treaties when the proceedings of the former of the United States may be drawn into are relied on, and brought before the question, be vested in some single tri- latter by the party claiming the benefit bunal is too apparent for controversy. of such proceeding. Elliot v. Piersol, The people of the United States have 1 Pet. (U. S.) 328; Hickey's Lessee v. vested that power in this tribunal, and Stewart, 3 How. (U. S.) 750; Thompits highest duty is to exercise it with son v. Whitman, 18 Wall (U. S.) 457; fidelity. The point of difficulty in this Christmas 7'. Russell, 5 Wall. (U. S.) case is to decide, whether the legiti- 290; Bissell v. Briggs, 9 Mass. 462; mate exercise of this power has been Pennywit v. Foote, 27 Ohio St. 600. obstructed by the judgment of the court In applying this rule, the only differof errors of New York, now under con- ence recognized between courts of susideration. It is not to be admitted perior and of inferior jurisdiction is that the court whose judgment has been that, with reference to courts of superior reversed or affirmed can rejudge that or general authority, jurisdiction is prereversal or affirmance; but it must be sumed until the contrary appears; but conceded that the court of dernier with reference to courts of inferior or ressort in every State decides upon its limited authority, the jurisdiction must own jurisdiction, and upon the jurisdic- be affirmatively shown by parties who tion of all the inferior courts to which claim any right or benefit under their its appellate power extends.
If proceedings. Gray v. Larrimore, 2 Abb. the jurisdiction of the court for the (U. S.) 542. See § 5. Presumptions, correction of errors does not, according supra, p. 270. to the laws by which the judicial sys- If a claim be set up under the sentem of New York is organized, enable tence of condemnation of a foreign that court to notice errors in fact in the court, this court will examine into the proceedings of the supreme court, not jurisdiction of such court; and if that apparent on the face of the record, it is court cannot consistently with the law dificult to perceive how that court of nations exercise the jurisdiction could conform its judgment to that of which it has assumed, its sentence is to this court otherwise than by quashing be disregarded; but of their own jurisits writ of error to the supreme court. diction, so far as it depends upon muniHad that been its original judgment, it cipal law, the courts of every country is not believed that this court would are exclusive judges. Rose v. Himely, have reversed it; and we do not think Cranch (U. S.) 241. that, as now rendered, it can be held to The courts of one State will look into be erroneous." Davis v. Packard, 8 the records of courts of another State Pet. (U. S.) 312, 323, 324.
to see if they have jurisdiction. Kelly r'. The court of last resort in this State Hooper's Exrs., 3 Yerg. (Tenn.) 395. is the exclusive judge of its own juris- The supreme court of Ohio, in dediction, and its decision on that point ciding that they would not withdraw, cannot be questioned by the court be- by habeas corpus, persons in the cuslow, when directed to carry into effect tódy of a United States court, charged a judgment of reversal.
But where a
with violation of an act of congress, writ of error was taken in a criminal while the proceedings in the United case, and the judgment of the court States court were pending, laid down below reversed, and it appeared that the principle that where a court of gen. the appellate court had not decided the eral jurisdiction and legally competent question whether they could hear argu- to determine its own jurisdiction, has ment of the case without the accused acquired jurisdiction de facto over per.
(c) In What Manner.-1. A court may be asked to determine its own jurisdiction in four different ways:
(1) Motion to Dismiss.-A motion to dismiss the suit for want of jurisdiction may be made at any time. A motion to dismiss may also be made in an appellate court for want of jurisdiction in the lower court.2
(2) Demurrer.-A demurrer on the ground of want of jurisdiction may be taken when the want of jurisdiction is apparent on the face of the record.3
(3) Plea.-A plea, in abatement of the action, to the jurisdiction of the court may be entered when the want of jurisdiction is
son or subject matter, it is a rule, 2. Motion to Dismiss. --A motion to founded upon comity between judicial dismiss may be made in appellate court tribunals, that no other court will in- for want of jurisdiction of trial court. terfere with or seek to arrest the Dillard z'. St. Louis, K. C. & N. R. R., action of the court in which and while 58 Mo. 69, 74. the case is still pending and unde- An appellate court will dismiss a termined. Ex parte Bushnell, 8 Ohio suit, when the trial court had not juris
diction of the sum in controversy. Mc1. Objections to Jurisdiction.—Objec- Clure v. Lay, 30 Ala. 208; Dartez v. tion to the jurisdiction may be taken by Lege, 28 La. An. 640; Collins v. Colmotion to dismiss the suit. Nazro v.Cra- lins, 37 Pa. St. 387; Billingsly v. State, gin, 3 Dillon (U. S.) 474; Gormly v. 3 Tex. App. 686; Butler v. Wagner, 35 McIntosh, 22 Barb. (N.Y.) 271; Water- Wis. 54; Coohan v. Bryant, 36 Wis. man v. Tuttle, 19 Ill. 292.
605. A motion to dismiss a suit for want If a judgment had been entered by of jurisdiction of the subject matter is the trial court that judgment should never out of time prior to final judg- also be reversed. United States v. ment. Stoughton v. Mott, 13 Vt. 175; Huckaber, 16 Wall. (U. S.) 414. Wildman v. Rider, 23 Conn. 172; 3. Jurisdiction-Objection Taken by DeDonaldson v. Hazen, Hemp. (U. S.) murrer.--A plea in abatement to the 423
jurisdiction of the court is required only Though the declaration does not
in those cases where there is an apparshow that the court has jurisdiction, it ent jurisdiction; but to be ousted by is in the discretion of the court to al- some fact not appearing to the court, low an amendment to such declaration, but which the plea in abatement disto as to give it jurisdiction. Wakefield closes, when the want of jurisdiction 7'. Goudy, 3 Scam. (III.) 133; and the appears by the plaintiff's own showing, granting leave to amend is a virtual it is difficult to perceive what plea in overruling of the motion to dismiss. abatement can be framed by the defendShepard v. Ogden, 2 Scam. (III.) 251. ant other than a demurrer. Grant v. After the pleadings are made up, and Tams, 7 T. B. Mon. (Kv.) 218, 222; whilst the trial is progressing, it is ir- Emerson
v. W. U. R. Co., 75 Ill. regular to move to dismiss the com- 176; King v. Poole, 36 Barb. (N. Y.) plaint or bill in equity for defects 242. apparent upon the face of the com- Objection to the jurisdiction of the plaint or bill in equity, except where person, if it appear on
the face there is a manifest defect of jurisdiction of the record, must be taken by in regard to the subject matter, as dis- demurrer; if not, it must be taken by tinguished from a want of jurisdiction answer; otherwise it will be deemed to in respect to the person, or a statement be waived. Keiser v. Yandes, 45 Ind. of a defective cause of action as distin
174. guished from a defective statement of a A State court should quash proceedcause of action. It is too late then to ings against a foreign consul, whenever object to defective statement, and to that objection to its jurisdiction is sugthe jurisdiction of persons who had ap- gested, and it is not necessary that it peared and pleaded. Garrett 2. Trot- should be by plea before general imparter, 65 N. Car. 430; Mastin v. Marlow, lance. Mannhardt v. Soderstrom, I 65 N. Car. 695.
Binn. (Pa.) 138.
not apparent on the face of the record. The plea must state what other court has jurisdiction,” except when no court has jurisdiction, in which case that fact must be set up as a plea in bar.3 The plea must be interposed by the defendant himself under oath.4
(4) A Motion to Vacate Judgment.5—2. An appellate tribunal may be asked to determine the jurisdiction of a lower tribunal in three ways:
(5) Certiorari.—The writ of certiorari may issue to determine whether the lower court had jurisdiction in the case, or, having jurisdiction, had properly exercised it. At common law it issues
1. Objection Taken by Plea.—When bler Bee (Admr.) 9; Hortone want of jurisdiction of the person does Townes, 6 Leigh (Va.) 47. not appear on the record, advantage 5. See the cases cited in note 1, should be taken, by plea. Hughes v. Jurisdiction Enquired Into After JudgMartin, i Ark. 455; Keiser v. Yandes, ment, ante, p. 307. 45 Ind. 174; Donaldson 7'. Hazen, Hemp. 6. Certiorari.-A higher court may (U. S.) 423.
be asked to enquire into the jurisdiction Upon a suit founded on the decree of of a lower tribunal by a writ of certia court of another State the want of orari. This writ brings up the record jurisdiction in the court rendering the in the case. If it appear from the recdecree may be taken advantage of by ord that the court had not jurisdiction plea, if it does not appear upon the in the premises, or had not exercised its face of the record. Kelly v. Hooper's jurisdiction according to the statutory Exrs., 3 Yerg. (Tenn.) 395; McKay v. requirements, or had exceeded its jurisGordon, 34 N. J. L. (5 Vroom) 286; diction, the higher court will reverse, Morse 2). Presby, 25 N. H. 299.
and if the court below has no jurisdicA plea that the amount actually in tion whatever it will dismiss the suit. controversy is less than the jurisdic. People v. Board of Delegates, 14 Cal. tional limit, and the damages were 479; Baker v. Superior Court of Shasta fraudulently claimed in excess thereof Co., 71 Cal. 583; Cullen v. Lowery, 2 is good. Bridge v. Bullew, 11 Tex. Harr. (Del.) 459; Marble v. Laney, 41 269; Watkins v. Brown, 5 Ark. 197; Ga. 624; Edgar v. Greer, 14 Iowa 211; Dillard v. Noel 2 Ark. 449. The same City of Bangor v. Co. Comırs. of objection may be set up in an answer. Penobscot Co., 30 Me. 270; State v. Small z. Gwinn, 6 Cal. 447.
Mayor etc. of Jersey City, 2 Dutch. (26 2. A plea to the jurisdiction is bad N. J. L.) 444; Combs v. Dunlap, 19 on demurrer, if it does not point out Wis. 591; Varrell v. Church, 36 Wis. what other court has jurisdiction. 318; Bames v. Schmitz, 44 Wis. 482. Fields v'. Walker, 23 Ala. 155; Heilman It has been held that at common law 7'. Martin, 2 Ark. 158; Lawrence v. the writ of certiorari tries nothing but Smith, 5 Mass. 362; Jones v. Winches- the jurisdiction, and, incidentally, the ter, 6 N. H. 497; Hortons v. Townes, 6 regularity of the proceedings upon Leigh (Va.) 47.
which the jurisdiction depends. State The plea is a plea in abatement, not Board of Co. Commrs., 5 Nev. a plea in bar. Waterman v. Tuttle, 18 317; State v. Co. Commrs., 6 Nev.
100; Whitney v. Board of Delegates, 14 3. When, however, no court has juris. Cal. 479; People v. Goodwin, 5 N. Y. diction of the cause of action, then by 568; Varrell v. Church, 36 Wis. 318. See the law of the land, the action cannot Fraser v'. Fretlon, 53 Cal. 644; Mullins be maintained; and the defendant may v. People, 24 N. Y. 399. avail himself of this defence under a In Massachusetts an irregular pracplea in bar. Rea v. Hayden, 3 Mass. tice once existed that if a writ of error 24.
had issued in a case where a certiorari 4. A plea to the jurisdiction can only ought to have been moved for, the be interposed by the defendant himself court sometimes looked into the proin propria persona, and on oath. No ceedings, and if an error was found on third person can be admitted to file which a certiorari would have been such a plea. Teasdale v. Sloop Rain- granted, the court would quash the
only after the lower court has decided that it has jurisdiction.!
(6) Prohibition.—A writ of prohibition is the only remedy by which a lower court can be restrained from attempting to exercise a jurisdiction which it does not have.2
(7) Habeas Corpus.--The question whether a lower tribunal or a co-ordinate tribunal had the jurisdiction which it exercised may also be raised by a writ of habeas corpus.3
13. Effect of Acting Without Jurisdiction—(a) Generally.—A judgment entered by a court without jurisdiction is void, and will be held such in a collateral proceeding, 4 or on appeal in the same proceedings. Pratt v. Hall, Mass. v. Carr, 78 Ind. 455; Reed v. Wright, 2 239. But the practice, was early Greene (Iowa) 15; Dorsey 7. Kendall, abolished. Ball v. Brigham, 5 Mass. 8 Bush (Ky.) 294; Lovejoy v. Albee, 33 406.
Me. 414; Clark v. Bryan, 16 Md. 171; 1. A certiorari on the ground of State v. Richmond, 26 N. H. 232; want of jurisdiction is premature until Eaton v. Badger, 33 N. H. 228; Moulin after the lower court has decided that it v. Ins. Co., 4 Zab. (24 N. J. L.) 222; has jurisdiction. Fowler v. Lindsey, 3 Borden v. Fitch, 15 Johns. (N. Y.) 121; Dall. (U. S.) 411; Wilson v. Board of Bigelow v. Stearns, 19 Johns. (N. Y.) Surpervisors, 3 Cal. 386; People v. 39; Gilliland v. Sellers, 2 Ohio St. County Judge, 40 Cal. 479; People v. 223; Gordon's Appeal, 93 Pa. St. 361; Board of Commrs. of Pilots, 37 Barb. Williams v. Harris, 4 Sneed (Tenn.) (N. Y.) 126; Lynde v. Noble, 20 Johns. 332. See Crepps v. Durden, Smith's (N. Y.) 80.
L. Cas., vol. 1, pt. 2, p. 1079, 1156 (8th See the article on CERTIORARI, Am. Am. ed.) & Eng. Ency. of Law, vol. 3, p. 60. A voluntary nonsuit on ground that
2. Hanger & Co. v. Keating, 26 Ark. court has no jurisdiction is no bar to a 51. See the article on PROHIBITION, subsequent suit on same cause of action. WRIT OF.
Township of Moreland v. Gordner, 109 3. Habeas Corpus.- A writ of habeas Pa. St. 116. corpus cannot be made the vehicle of Where the power to incorporate a determining mere errors, but if the borough cannot be exercised unless a court below had no jurisdiction the majority of the freeholders within the judgment is void, and therefore the proposed limits sign a petition therefor, prisoner may be discharged on the and a petition is found to be deficient in habeas corpus. Ex parte Mirande, 73 that respect, the court has no jurisdicCal. 365; Ex parte Kearny, 55 Cal. 212. tion, nor can it give itself jurisdiction
A tribunal with only co-ordinate by reducing the size of the borough so jurisdiction may also enquire into the as to make the signers to the petition a question of jurisdiction on a writ of majority of the inhabitants. Re Inkabeas corpus. Miller v. Snyder, 6 corporation of Taylorport (Pa.), 21 Ind. I.
Weekly Notes 533. See the article on HABEAS CORPUS in Jurisdiction acquired by publication the Am. & Eng. Encyc. of Law, vol. 9, p. of process is only as to the cause of 161. See also the cases cited in note i, action in the pleadings at the time of p. 246, Alleged Defect in Definition. publication. And a court of the same
4. Judgment in Absence of Jurisdic- State will in a collateral proceeding tion Is Void. - It is conclusively estab- deem a judgment void if based on a lished by long lines of decisions that a cause of action set up in an amended judgment entered by a court without petition filed after such service by pubjurisdiction can be attacked collaterally lication was made, and no new service and will be held void in such collateral made or an appearance entered. Stuart proceeding. Dynes v. Hoover, 20 How. et al. v. Anderson et al. (Tex.), 8 S. W. (U. S.) 65, 80; Wightman v. Krasner, Rep. 295. 20 Ala. 446; Watts v. Frazer, So Ala. If a court has jurisdiction, it is altoiS6, Borden v. State, II Ark. 519; gether immaterial how grossly irreguGrimmett v'. Asken, 48 Ark. 151; Cen- lar or manifestly erroneous its protral Bank of Ga. v. Gibson, 11 Ga. 453; ceedings may have been; its final order Munroe 2. People, 102 III. 406; Webb cannot be regarded as a nullity, and can