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proceeding. When a court transcends its jurisdiction its judg. ment 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.5
(b) Illegal Courts.-The sentence of an illegal court is void.
not, therefore, be collaterally impeached. On the other hand, if it proceeded without jurisdiction it is equally unimportant how technically correct and precisely certain, in point of form, its record may appear, its judgment is void to every intent and for every purpose, and must be so declared by every court in which it is presented. Sheldon v. Newton, 3 Ohio St. 494, 498. See Whitewell v. Barbier et al., 7 Cal. 54. And a court has the right to determine whether its writs when issued are void or amendable so as to give the court jurisdiction. Its decision thereon cannot be collater ally impeached. Rose v. D. V. R. Co., 47 Iowa 420.
When a municipal corporation has the power to pass an ordinance for a certain purpose, but exercises that power in an unauthorized manner, the ordinance is valid and until set aside by legal proceedings brought for that purpose, and its validity cannot be brought in question collaterally as a matter of defence. Treasurer of Camden v. Mulford, 2 Dutch. 26 (N. J.) L. 49.
1. Consequently, if the inferior court had no jurisdiction of the subject matter, the superior court can have none on appeal. Collins et al. v. Woodruff, 9 Ark. 463; Camp v. Wood, 10 Watts (Pa.) 118.
will be held void in a collateral proceeding has been treated in § 1. Definition, note 1, p. 246, Alleged Defect in Definition; and note 1, p. 247, Definition Resulting from the Latest Cases.
3. It followed that 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. Rood v. Eslava, 17 Ala. 430; Gordon's Appeal, 93 Pa. St. 361.
4 In an action on a replevin bond, the fact that the defendant had commenced his action before a tribunal incompetent to try the matter in dispute: is no defence. The principle is that a party who avails himself of the process of an inferior court cannot escape the responsibility of his own act, upon the ground that such tribunal had no jurisdiction over the subject matter. McDermott v. Isbell, 4 Cal. 113.
5. The want of jurisdiction of the court over the subject matter of the action will not prevent the defendant from recovering costs, on the dismissal of the complaint, or deprive him of the right to damages upon the injunction undertaking, when the injunction is dissolved. Blair v. Cummings, 39 Cal. 667; Cumberland Coal & Iron Co. v. Hoffman Steam Coal Co., 39 Barb. (N. Y.) 16; King v. Poole, 36 Barb. (N. Y.) 242.
But when a case has been improperly removed from one State court to another, the cost of such removal cannot be recovered. Humiston 2. Ballard, 63 Barb. (N. Y.) 9. And costs cannot be recovered when the want of jurisdiction was apparent on the record. Gormly v. McIntosh, 22 Barb. (N. Y.) 271.
See the article on COSTS, § 3, (c), QUESTIONS OF JURISDICTION, Am. & Eng. Encyclo. of Law, vol. 4, p. 314.
6. Illegal Courts.-"A sentence professing on its face to be the sentence of a judicial tribunal, if rendered by a sell
At least unless the appeal be taken to a court having original jurisdiction of the subject matter, and the parties voluntarily appear and consent to trial there. Randolph Co. v. Ralls, 18 Ill. 29. Compare Osgood v. Thurston, 23 Pick. (Mass.) 110.
2. If a court transcends its jurisdictional powers, its judgments will be void. Bozwell v. Otis, 9 How. (U. S.) 336; Arizona v. Mix, 1 Arizona 52; Kenney Greer, 13 Ill. 432; Folger v. Columbian Ins. Co., 99 Mass. 267; Corwithe v. Griffing, 21 Barb. (N. Y.) 9; Hill v. Robertson, 1 Strobl. (S. Car.) 1; Barrett v. Crane, 16 Vt. 246.
The question whether such judgments
The confederate States while possessed of the attributes of gov ernment to some degree had no power to create a court,1 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
constituted body, or by a body not empowered by its government to take cognizance of the subject it had decided, could have no legal effect whatever." Rose v. Himely, 4 Cranch (U. S.) 241, 68, 269.
1. The confederate states were suffi ciently in possession of the attributes of government to be regarded as in fact the ruling or supreme power of the country over which their pretended jurisdiction extended, so far as to make a seizure by them, of a vessel, a "capture" within the terms of a warranty in a policy of insurance. Mauran v. Ins. Co., 6 Wall. (U. S.) 1, 13. Compare Newton v. Bushong, 22 Gratt. (Va.) 628; s. c., 12 Am. Rep. 553.
But the confederate states had no power to create a court. An act of the confederate congress creating such a court was void. The court was a nullity and could exercise no rightful jurisdiction. Hickman v. Jones, 9 Wall. (U. S) 197.
When, however, during the late civil war, portions of the insurgent territory were occupied by the national forces. it was within the constitutional authority of the president, as commander in chief, to establish therein provisional courts for the hearing and determination of all causes arising under the laws of the State or of the United States. The Grapeshot, 9 Wall. (U. S.) 129.
2. In order to give the United States supreme court jurisdiction to pass upon the validity of a statute, the statute must be passed by a State, a member of the Union, and a public body owing obedience and conformity to its constitution and laws. Scott v. Jones, 5 How. (U. S.) 343. But as to the habits and usage of the Indian tribes, see Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1, 18. The confederate states had no legal existence as a nation, and the congress of the confederate states had no right to pass an act sequestrating the property of loyal owners, and a sale thereof under such law is void, and conferred no title
to the purchaser or his assignees. Dewing v. Perdicaries, 96 U. S. 193; Williams v. Bruffy, 96 U. S. 176. Compare Newton v. Bushong, 22 Gratt. (Va.) 628; s. c.. 12 Am. Rep. 553.
3. The ordinances of secession passed by the several confederate states were void. Those States remained parts of the Union. Texas v. White, 7 Wall. (U. S.) 700.
4. The legislatures of the rebellious States were at least de facto legislatures, and all their enactments, which were not hostile to the Union, nor to the authority of the general government, and which were not in conflict with the constitution of the United States, or of the States, have the same validity as if they had been enactments of legitimate legislatures. Thorington v. Smith, 8 Wall. (U. S.) 1, Horn v. Lockhart, 17 Wall. (U S.) 570, Sprott v. United States, 20 Wall. (U. S.) 459; United States v. Home Ins. Co., 22 Wall. (U. S.) 99; Keith v. Clark, 97 U. S. 454; Ketchum v. Buckley, 99 U. S. 188; Cook v. Oliver, 1 Woods (U. S.) 437; Hughes v. Stinson, 21 La. An. 540, Pulaski Co. v. Stuart, 28 Gratt. (Va.) 872. But see Moseley v. Tuthill, 45 Ala. 621; s. c., 6 Am. Rep. 711.
5. But all acts passed by the legislatures of the several States tending to aid the rebellion, were void. Texas v. White, 7 Wall. (U. S.) 700; Thomas v. City of Richmond, 12 Wall. (U. S.) 349; Huntington v. Texas, 16 Wall. (U. S.) 402; First Nat. Bank v. Texas, 20 Wali. (U. S.) 72; Sprott v. United States, 20 Wall. (U. S.) 459; Taylor v. Thomas, 22 Wall. (U. S.) 479; Keith v. Clark, 97 U. S. 454; Hatch v. Burroughs. 1 Woods (Ü. S.) 439; Thomas v. Taylor, 42 Miss. 651; s. c., 2 Am. Rep. 625. Neither a confederate state court, nor the legislature of such State, were able to authorize the investment of trust moneys in confederate bonds. Horn v. Lockhart, 17 Wall. (U. S.) 570; Van Epps v. Walsh, 1 Woods (U. S.) 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; "2 "competent jurisdiction; "3" concurrent jurisdiction: "4 "final jurisdiction; "5
S.) 312; Hall v. Hall, 43 Ala. 488 (overruling Watson v. Stone, 40 Ala. 451); Bailey v. Fitzgerald, 56 Miss. 578 (overruling Trotter v. Trotter, 40 Miss. 704). But a trustee who received confederate treasury notes in payment of a debt due the trust estate is entitled to credit on proof that he received the same upon actual compulsion. Moore v. Mitchell, 2 Woods (U. S.) 483; Ferguson v. Lowery, 54 Ala. 510; s. c., 25 Am. Rep. 718.
diction within that act.-Re Conner, 39 Cal. 98; also city courts having a seal and a clerk and being courts of record, and the judge being clothed with the powers of a county judge, etc.-United States v. Power, 14 Blatchf. (U. S.) 223; and police courts, which are courts of record, have been held to be courts of common law jurisdiction, within the meaning of the act, and authorized to receive the declarations of intention to become a citizen, when provided with a clerk and a seal. Ex parte Gladhill, 8 Metc. (Mass.) 168. But not when not provided with a clerk. Ex parte Cregg, 2 Curtis (U. S.), 98; State v. Whittemore, 50 N. H. 245.
3. Competent Jurisdiction.--A statute in Indiana provides that the sale of a decedent's real estate by an administrator shall not be avoided on account of irregularities if, inter alia, the sale was authorized by a court of competent jurisdiction, which has been construed to mean jurisdiction of the person as well as of the subject matter. Babbitt v. Doe, Ind. 355.
By a statute in Massachusetts, any person imprisoned by force of a lawful warrant issued by a court of "compe tent jurisdiction," shall be entitled to a writ of personal replevin. It has been decided that whatever may be the strict technical meaning of the word "court," the act was clearly intended to include a warrant for the collection of taxes properly issued to a collector by a board of assessors. Aldrich v. Aldrich, 8 Metc. (Mass.) 102.
4. Concurrent Jurisdiction.-Where land in a State was ceded by the State to the United States, but the act of cession provides that the State shall retain "concurrent jurisdiction" therein so far as to serve State process, civil and criminal, it has been held that the United States had nevertheless such sole and exclusive jurisdiction over that land as was necessary under the act of congress of 1790, ch. 9 , to give the United States courts jurisdiction to try one accused of committing a larceny on said land. United States v. Davis, 5 Mason (U. S.) 356.
5. Final Jurisdiction.-A statute in Iowa vests jurisdiction in the county
The proceedings in the courts of the confederate States, during the war, could not affect a nonresident residing in a loyal State, or a person serving in the army of the United States. Cuyler v. Ferrill, 1 Abbott (U. S.) 16; Pennywit v. Foote, 27 Ohio St. 600. Contra, as to proceedings in courts of loyal States. De Jarnett v. De Giverville, 56 Mo. 440.
1. Any Other Jurisdiction.-By article 730, subd. 5 of the Code of Criminal Procedure in Texas, it is provided that all persons are competent to testify in criminal actions, except, inter alios, "all persons who have been or may be convicted of felony in this State, or in any other jurisdiction." It has been decided that that expression, "any other jurisdiction," is not limited to tribunals of the United States exercising their jurisdiction in Texas, but that one convicted of a felony in the courts of a sister State is thereby disqualified. The court, however, rested its decision partly on the fact that in the first act on the subject, passed March 6th, 1863, the language used was, "all persons who have been or who may be convicted of felony in this or in any other State of the confederate (United) States, or of any other State or kingdom." Petner v. State (Tex.), 5 S. W. Rep. 210.
2. Common Law Jurisdiction.-It is provided by § 2165 of the Revised Statutes of the United States, that an alien may be admitted to be a citizen of the United States by "a court of record of any of the States having common law jurisdiction and a seal and clerk." It has been that county courts, being courts of record, and having a seal and a clerk, have common law juris
"further civil and criminal jurisdiction; "1 "jurisdiction of the cause:"2 "jurisdiction over the offence; " "out of the jurisdiction; " 4
judge's court in certain cases, and further provided that "any person aggrieved by the decision of the county judge may appeal therefrom to the district court of the proper county which shall have final jurisdiction over the matter, and shall make such decision in the premises as justice and equity may require." From a decision of a district court in such a case, on appeal from the county court, an appeal was taken to the supreme court of the State, which, however, dismissed the appeal on the ground that there is a clear distinction between judgment and jurisdiction, judgment being the decision of the law, given by the court, as the result of proceedings therein instituted; and jurisdiction having reference to the power conferred to take cognizance of and determine causes according to law, and to carry the same into execution, and therefore the words "final jurisdiction" inhibited the jurisdiction of an appellate tribunal. Lampson v. Platt, 1 lowa 556.
1. Further Civil and Criminal Jurisdiction. Under the constitution of New York, as amended in 1869, certain city courts are continued with the powers and jurisdiction they then had, "and such further civil and criminal jurisdiction as may be conferred by law." It has been held that when the constitution speaks of "further civil and criminal jurisdiction," it has respect to the object of the jurisdiction-not to the territory or the persons of suitors-and by said article the courts therein mentioned were continued with the same territorial and personal jurisdiction, with power to the legislature to enlarge their jurisdiction over subjects and matters civil and criminal in their nature, and the proper subjects of civil and criminal prosecutions. The authority is to enlarge their jurisdiction as local courts, not to create new courts with general jurisdiction throughout the State. And therefore the legislature has no power to change the character of these courts by divesting them of their locality and extending their jurisdiction to persons and matters, the subjects of actions, in other parts of the State outside of the localities wherein said courts were established. Landers v. Staten Island R. Co. 53 N. Y. 450.
2. Jurisdiction of the Cause. It is an established principle that the privilege of parties or witnesses from the service of process extends to all cases where the attendance of the party or witness is given in any matter pending before a lawful tribunal having jurisdiction of the cause. See Greenleaf on Evidence (14th ed.), § 317, vol. 1, p. 409. It has been held that a party to a suit who at the request of his council goes into another State, to assist them in taking depositions before a notary public to be used in the cause, is not free from service of process while there. The court saying, "In taking the depositions the notary performed purely ministerial functions. He could decide no questions, nor determine any matter affecting the rights of the parties to the suit, nor was he, as we have just seen, connected with any court or other tribunal having the power to do so. Hence he could in no sense, in the language of Greenleaf, be said to have 'jurisdiction of the cause,' and there. fore he does not fall within the category of any of the tribunals contemplated by the rule in question. Greer v. Young, 120 Ill. 184; s. c., 26 Am. Law. Reg. 372.
3. Jurisdiction Over the Offence. The statute of 7 Geo. IV, c. 64, § 20, remedies in criminal cases, the "want of a proper or perfect venue, where the court shall appear by the indictment to have had jurisdiction over the offence." It has been decided that the word jurisdiction, as used in that statute, means local jurisdiction, and not jurisdiction with reference to the nature of the offence charged. Queen 7. O'Connor, 5 Ad. & Ell., N. S. 16 (48 E. C. L.).
4. Out of the Jurisdiction. - By the act of congress of April 30th, 1790, ch. 36, § 8, the United States courts are given jurisdiction to try and punish certain crimes when committed "out of the jurisdiction of any particular State." These words have been defined to mean out of the jurisdiction of any particular State of the Union, and not out of the jurisdiction of any State foreign or domestic. United States v. Pirates, 5 Wheat. (U. S.) 184.
If a witness is within the State so that process may compel him to testify, 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 jurisdiction" within the meaning of subdivision 8 of 1870 of the Code of Civil Procedure of California, so as to permit his testimony given on a former trial to be received in evidence. Meyer v. Roth, 51 Cal. 582.
1. Similar Jurisdiction. Article 6, §14 of the constitution of Virginia provides for the creation of corporation or hustings courts "with similar jurisdiction which may be given by law to circuit courts of this State." It has been held that the words "similar jurisdiction" were not intended to restrict, but to enlarge the jurisdiction of these courts, and to elevate them to the grade and dignity of circuit courts, and therefore it was competent for the legislature to give to the corporation courts jurisdiction to try cases of felony, though the jurisdiction in such cases was taken away from the circuit courts. Chahoon v. Commonwealth, 21 Gratt. (Va.) 822. 2. Summary Jurisdiction. By the statute 20 and 21 Vict., ch. 43, justices of the peace are empowered, when exercising a summary jurisdiction, to submit a case stated to the courts to get advice on points of law therein involved. It has been queried whether a proceeding to distrain for rates under the English statutes was an exercise of summary jurisdiction such as would enable them to submit such a case stated. Sweetman v. Guest, L. R., 3 Q. B. 262.
the capacity to determine the merits of the dispute or controversy, and to grant the relief asked for. The provision does not give countenance to the idea that the suit or proceeding is to be retained in the circuit court till brought to a formal adjudication on the merits, when, at that ultimate stage, the court must say that the case is not within its jurisdiction, after the party successfully challenging the jurisdiction has been harassed by expenses and injured by delay. But it means what it says, that the dismissal or remanding 'shail' be made whenever, ‘at any time' after the suit is brought or removed to the circuit court, it shall appear to the satisfaction of that court that there is, really and substantially, no dispute or controversy of which it has jurisdiction, in the sense above pointed out; the right to have a review by this court of the order dismissing or remanding the suit being given to the aggrieved party at once, instead of his being compelled to await the making of such an order at the end of a full and formal hearing or trial, on issues and proofs, on the merits alleged on either side." BLATCHFORD, J., in Rosenbaum v. Bauer, 7 Sup. Ct. Rep. 633.
The phrase "within the jurisdiction” used in extradition treaties has a broader meaning than that of mere physical territorial jurisdiction, or even of quasi territorial jurisdiction or treaty jurisdiction. It has an enlarged meaning equivalent to the words "authority, cognizance or power of the courts," and when the person whose extradition is sought cannot be tried or punished in the territory where he is found for the crime charged, no reason exists why any court should strain after a construction which would prevent his delivery up to a jurisdiction where he may be tried for the offence. Therefore a subJect of Prussia charged with a crime committed in Belgium, with which country we had no extradition treaty. was delivered up to Prussia, whose courts had jurisdiction to try Prussian subjects for crimes committed in foreign countries. Ex parte Stupp or Vogt, 11 Blatchf. (U.S.) 124, 18 Int. Rev. Rec. 18.
In California it is requisite that the subscribing witness to a written instrument should be produced if he is within
3. Within the Jurisdiction.-The act of congress of March 3rd, 1875, § 5 (18 St. U. S. 470, 472), provides: "That if, in any suit commenced in a circuit court or removed from a State court to a circuit couat of the United States, it shall ap pear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court The said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed," etc. In a case arising under said act, the above words "within the jurisdiction" have been defined as follows: "What is meant by the expression 'within the jurisdiction?' It means 'within the judicial cognizance,' within