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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
(b) 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, and also into its own jurisdiction.5
superior court by applying for a prohibition. State v. Scott, 1 Bailey (S. Car.) L. 294.
A court possesses power and jurisdiction to determine whether it has authority to entertain a particular controversy, although its decision and the law be that it has no such authority, and it therefore dismisses the suit. King v. Poole, 36 Barb. (N. Y.) 242.
The first point decided by any court, although it may not be in terms, is that the court has jurisdiction, otherwise it would not proceed to determine the rights of the parties. Clary v. Hoagland, 6 Cal. 685.
See the article on PROHIBITION, Writ of.
4. Jurisdiction Inquired Into in Appellate Court.-An appellate court is bound to inquire in every case, whether the facts presented by the record give jurisdiction. Stamps v. Newton, 3 How. (Miss.) 34; Borough of Little Meadows, 28 Pa. St. 256. See the act of congress of February 25, 1889, c. 236, § 1, providing that the Supreme Court of the United States may review all questions of jurisdiction of court below, without reference to the amount in controversy.
5. In a singular case a defendant had appealed to the court of errors in New York on the ground that he was a consul general of a foreign government, and exempt from suit in a State court, and that court decided that the consuls of foreign countries are not so exempt, and affirmed the judgment of the court below. The defendant then appealed to the Supreme Court of the United States, which latter court decided that the defendant was exempt, and remanded the case with directions to the court of errors in New York to conform its judgment to such decision. The court of errors thereupon again affirmed the judgment of the lower court, on the ground that the fact that the defendant was such consul general did not appear in the record of the case, and on motion dismissed its writ of error to the lower court. On a second appeal to the supreme court this action was affirmed,
man, 74 Ind. 221; Mathive v. McIntosh, 40 Wis. 120; Thompson v. Steamboat, 2 Ohio St. 26.
Where the facts necessary to give a court jurisdiction are stated in a bill for divorce, but they are denied by the answer, the question of jurisdiction becomes one of fact to be determined on the hearing, and is not waived; and when during the progress of the trial, want of jurisdiction clearly appears it is the duty of the court to dismiss the bill. Way v. Way, 64 Ill. 406.
1. Jurisdiction Inquired Into After Judgment. In all cases, even though judgment has been entered in the cause, the court should and will at any time vacate the judgment, and declare the same null and void, on motion, if it appear that it had not jurisdiction. Ex parte Crenshaw, 15 Pet. (U. S.) 119; Harris v. Hardeman, 14 How. (U. S.) 334; Shuford v. Cain, 1 Abbott (U. S.) 302, Crane Admr. v. Barry, 47 Ga. 476; Forman v. Carter, 9 Kan. 674; Graham v. Ringo, 67 Mo. 324; Holmes v. Horne, 8 How. Pr. (N. Y.) 383; Hallett v. Righters, 13 How. Pr. (N. Y)43; Pitt 2. Davison, 37 Barb. (N. Y.) 97; Keaton v. Banks et al., 10 Ired. (N. Car.) L. 381; Hervey & Co. v. Edmunds, 68 N. Car. 243; In re College street, II R. I. 472; Franks v. Lockey, 45 Vt. 395; Hooe v. Barber, 4 Hen. & M. (Va.) 439; Mathie v. McIntosh, 40 Wis. 120. See Cannon v. Reynolds, 5 Ell. & B. 301.
2. See infra, note 4, Jurisdiction Enquired Into in Appellate Court.
3. Jurisdiction Inquired Into by What Court-Prima facie every court possesses the power of judging of its own jurisdiction, and where a party pleads to the jurisdiction, the decision of even an inferior court, in favor of its jurisdiction, is ordinarily as conclusive upon the parties as its judgment upon a matter confessedly within its jurisdiction; the only exception is where the want of jurisdiction appears on the face of the proceedings. A party, however, is not compelled to submit the question of jurisdiction to the decision of the inferior court, but may remove it to the
And since want of jurisdiction renders all proceedings void, the jurisdiction of a court may be inquired into collaterally.1
MR. CHIEF JUSTICE MARSHALL saying: "The court has felt great difficulty on this question. The importance of preserving uniformity in the construction of the constitution, laws and treaties of the United States must be felt by all; and the impracticability of maintaining this uniformity, unless the power of supervising all judgments in which the constitution, laws or treaties of the United States may be drawn into question, be vested in some single tribunal is too apparent for controversy. The people of the United States have vested that power in this tribunal, and its highest duty is to exercise it with fidelity. The point of difficulty in this case is to decide, whether the legitimate exercise of this power has been obstructed by the judgment of the court of errors of New York, now under consideration. It is not to be admitted that the court whose judgment has been reversed or affirmed can rejudge that reversal or affirmance; but it must be conceded that the court of dernier ressort in every State decides upon its own jurisdiction, and upon the jurisdiction of all the inferior courts to which its appellate power extends. . . . If the jurisdiction of the court for the correction of errors does not, according to the laws by which the judicial system of New York is organized, enable that court to notice errors in fact in the proceedings of the supreme court, not apparent on the face of the record, it is difficult to perceive how that court could conform its judgment to that of this court otherwise than by quashing its writ of error to the supreme court. Had that been its original judgment, it is not believed that this court would have reversed it; and we do not think that, as now rendered, it can be held to be erroneous." Davis v. Packard, 8 Pet. (U. S.) 312, 323, 324.
The court of last resort in this State is the exclusive judge of its own jurisdiction, and its decision on that point cannot be questioned by the court below, when directed to carry into effect a judgment of reversal. But where a writ of error was taken in a criminal case, and the judgment of the court below reversed, and it appeared that the appellate court had not decided the question whether they could hear argument of the case without the accused
being present, the lower court decided that it was proper for them to examine into the right of the appellate court so to do. People v. Clark, 1 Park. Cr. C. (N. Y.) 360.
1. Jurisdiction Inquired Into Collaterally-The jurisdiction of any court exercising authority over a subject may be inquired into in every other court when the proceedings of the former are relied on, and brought before the latter by the party claiming the benefit of such proceeding. Elliot v. Piersol. 1 Pet. (U. S.) 328; Hickey's Lessee v. Stewart, 3 How. (U. S.) 750; Thompson v. Whitman, 18 Wall (U. S.) 457; Christmas v. Russell, 5 Wall. (U. S.) 290; Bissell v. Briggs, 9 Mass. 462; Pennywit v. Foote, 27 Ohio St. 600.
In applying this rule, the only difference recognized between courts of superior and of inferior jurisdiction is that, with reference to courts of superior or general authority, jurisdiction is presumed until the contrary appears; but with reference to courts of inferior or limited authority, the jurisdiction must be affirmatively shown by parties who claim any right or benefit under their proceedings. Gray v. Larrimore, 2 Abb. (U. S.) 542. See § 5. Presumptions, supra, p. 270.
If a claim be set up under the sentence of condemnation of a foreign court, this court will examine into the jurisdiction of such court; and if that court cannot consistently with the law of nations exercise the jurisdiction which it has assumed, its sentence is to be disregarded; but of their own jurisdiction, so far as it depends upon municipal law, the courts of every country are exclusive judges. Rose v. Himely, 4 Cranch (U. S.) 241.
The courts of one State will look into the records of courts of another State to see if they have jurisdiction. Kelly v. Hooper's Exrs., 3 Yerg. (Tenn.) 395.
The supreme court of Ohio, in deciding that they would not withdraw, by habeas corpus, persons in the custody of a United States court, charged with violation of an act of congress, while the proceedings in the United States court were pending, laid down the principle that where a court of general jurisdiction and legally competent to determine its own jurisdiction, has 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
Though the declaration does not show that the court has jurisdiction, it is in the discretion of the court to allow an amendment to such declaration, to as to give it jurisdiction. Wakefield v. Goudy, 3 Scam. (Ill.) 133; and the granting leave to amend is a virtual overruling of the motion to dismiss. Shepard v. Ogden, 2 Scam. (Ill.) 251. After the pleadings are made up, and whilst the trial is progressing, it is irregular to move to dismiss the complaint or bill in equity for defects apparent upon the face of the complaint or bill in equity, except where there is a manifest defect of jurisdiction in regard to the subject matter, as distinguished from a want of jurisdiction in respect to the person, or a statement of a defective cause of action as distinguished from a defective statement of a cause of action. It is too late then to object to defective statement, and to the jurisdiction of persons who had appeared and pleaded. Garrett v. Trotter, 65 N. Car. 430; Mastin v. Marlow, 65 N. Car. 695
2. Motion to Dismiss.-A motion to dismiss may be made in appellate court for want of jurisdiction of trial court. Dillard 7. St. Louis, K. C. & N. R. R., 58 Mo. 69, 74.
An appellate court will dismiss a suit, when the trial court had not jurisdiction of the sum in controversy. McClure v. Lay, 30 Ala. 208; Dartez v. Lege, 28 La. An. 640; Collins v. Collins, 37 Pa. St. 387; Billingsly v. State,
Tex. App. 686; Butler v. Wa Vagner, 35 Wis. 54; Coohan v. Bryant, 36 Wis. 605.
If a judgment had been entered by the trial court that judgment should also be reversed. United States v. Huckaber, 16 Wall. (U. S.) 414.
3. Jurisdiction-Objection Taken by Demurrer.-A plea in abatement to the jurisdiction of the court is required only in those cases where there is an apparent jurisdiction; but to be ousted by some fact not appearing to the court, but which the plea in abatement discloses, when the want of jurisdiction appears by the plaintiff's own showing, it is difficult to perceive what plea in abatement can be framed by the defendant other than a demurrer. Grant v. Tams, 7 T. B. Mon. (Ky.) 218, 222; Emerson v. W. U. R. Co., 75 Ill. 176; King v. Poole, 36 Barb. (N. Y.) 242.
not apparent on the face of the record.1 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. 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 want of jurisdiction of the person does not appear on the record, advantage should be taken, by plea. Hughes v. Martin, Ark. 455; Keiser v. Yandes, 45 Ind. 174; Donaldson v. Hazen, Hemp. (U.S.) 423
Upon a suit founded on the decree of a court of another State the want of jurisdiction in the court rendering the decree may be taken advantage of by plea, if it does not appear upon the face of the record. Kelly v. Hooper's Exrs., 3 Yerg. (Tenn.) 395; McKay v. Gordon, 34 N. J. L. (5 Vroom) 286; Morse v. Presby, 25 N. H. 299.
A plea that the amount actually in controversy is less than the jurisdictional limit, and the damages were fraudulently claimed in excess thereof is good. Bridge v. Bullew, 11 Tex. 269; Watkins v. Brown, 5 Ark. 197; Dillard v. Noel 2 Ark. 449. The same objection may be set up in an answer. Small v. Gwinn, 6 Cal. 447.
2. A plea to the jurisdiction is bad on demurrer, if it does not point out what other court has jurisdiction. Fields v. Walker, 23 Ala. 155; Heilman 7. Martin, 2 Ark. 158; Lawrence v. Smith, 5 Mass. 362; Jones v. Winchester, 6 N. H. 497; Hortons v. Townes, 6 Leigh (Va.) 47.
The plea is a plea in abatement, not a plea in bar. Waterman v. Tuttle, 18
3. When, however, no court has jurisdiction of the cause of action, then by the law of the land, the action cannot be maintained; and the defendant may avail himself of this defence under a plea in bar. Rea v. Hayden, 3 Mass.
bler Bee (Admr.) 9; Hortone ບ. Townes, 6 Leigh (Va.) 47.
5. See the cases cited in note 1, Jurisdiction Enquired Into After Judgment, ante, p. 307.
6. Certiorari.-A higher court may be asked to enquire into the jurisdiction of a lower tribunal by a writ of certiorari. This writ brings up the record in the case. If it appear from the record that the court had not jurisdiction in the premises, or had not exercised its jurisdiction according to the statutory requirements, or had exceeded its jurisdiction, the higher court will reverse, and if the court below has no jurisdiction whatever it will dismiss the suit. People v. Board of Delegates, 14 Cal. 479; Baker v. Superior Court of Shasta Co., 71 Cal. 583; Cullen v. Lowery, 2 Harr. (Del.) 459; Marble v. Laney, 41 Ga. 624; Edgar v. Greer, 14 Iowa 211; City of Bangor v. Co. Commrs. of Penobscot Co., 30 Me. 270; State v. Mayor etc. of Jersey City, 2 Dutch. (26 N. J. L.) 444; Combs v. Dunlap, 19 Wis. 591; Varrell v. Church, 36 Wis. 318; Bames v. Schmitz, 44 Wis. 482.
It has been held that at common law the writ of certiorari tries nothing but the jurisdiction, and, incidentally, the regularity of the proceedings upon which the jurisdiction depends. State v. Board of Co. Commrs., 5 Nev. 317; State v. Co. Commrs., 6 Nev. 100; Whitney v. Board of Delegates, 14 Cal. 479; People v. Goodwin, 5 N. Y. 568; Varrell v. Church, 36 Wis. 318. See Fraser v. Fretlon, 53 Cal. 644; Mullins v. People, 24 N. Y. 399.
In Massachusetts an irregular practice once existed that if a writ of error had issued in a case where a certiorari ought to have been moved for, the court sometimes looked into the proceedings, and if an error was found on which a certiorari would have been granted, the court would quash the
4. A plea to the jurisdiction can only be interposed by the defendant himself in propria persona, and on oath. No third person can be admitted to file such a plea. Teasdale v. Sloop Ram
only after the lower court has decided that it has jurisdiction.1 (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, or on appeal in the same
4. Judgment in Absence of Jurisdiction Is Void.-It is conclusively established by long lines of decisions that a judgment entered by a court without jurisdiction can be attacked collaterally and will be held void in such collateral proceeding. Dynes v. Hoover, 20 How. (U. S.) 65, 80; Wightman v. Krasner, 20 Ala. 446, Watts v. Frazer, So Ala. 186, Borden v. State, 11 Ark. 519; Grimmett v. Asken, 48 Ark. 151; Central Bank of Ga. v. Gibson, 11 Ga. 453; Munroe v. People, 102 Ill. 406; Webb
v. Carr, 78 Ind. 455; Reed v. Wright, 2 Greene (Iowa) 15; Dorsey v. Kendall, 8 Bush (Ky.) 294; Lovejoy v. Albee, 33 Me. 414; Clark v. Bryan, 16 Md. 171; State v. Richmond, 26 N. H. 232; Eaton v. Badger, 33 N. H. 228; Moulin v. Ins. Co., 4 Zab. (24 N. J. L.) 222; Borden v. Fitch, 15 Johns. (N. Y.) 121; Bigelow v. Stearns, 19 Johns. (N. Y.) 39; Gilliland v. Sellers, 2 Ohio St. 223; Gordon's Appeal, 93 Pa. St. 361; Williams v. Harris, 4 Sneed (Tenn.) 332. See Crepps v. Durden, Smith's L. Cas., vol. I, pt. 2, p. 1079, 1156 (8th Am. ed.)