By the Court,
Morehouse, J.
The question presented is, whether enough is set forth in the plaintiff’s declaration to show that the justice had jurisdiction of the cause in which the judgment was rendered. It would be a matter of deep humiliation to find that a question so frequently before this court had hitherto eluded the scrutiny of its judges, and that an affluence of adjudication relative to the form of pleading proceedings be-forejustices of the peace, and other inferior judicatories, (exceeding that upon any other isolated question,) had only served to render it more doubtful and obscure. It is not to be disguised that the court in its decisions have not always confined their opinion to the case actually under consideration, and that in citing authority for the reasoning of the judge the rule in cases dissimilar in facts has, by the profession less learned, been confounded with or mistaken for the established precept of the .court in the case decided. In this remark I would not be understood as censuring the learned diligence of the late justices of this court. To the habitual completeness of their investiga[606] tions the profession is indebted for much learning, and to their example, for a new impulse in the desire for more.
There are a variety of oases in setting forth the proceedings of an inferior tribunal, officer, or court, where the rules and the reasons for them, though analogous, are distinguishable. In some the proceedings are according to the common law, though the jurisdiction be by statute; in others summary and contrary to it. I propose to confine myself to the case before me. It was settled in our own courts, before Chitty wrote, that in setting forth the proceedings of an inferior court, after stating enough to give it jurisdiction, it was sufficient to add, talitur processum fait, such an act was done by the court. (Service v. Hermance, 1 John. Rep. 91. Peebles v. Kittle, 2 Id. 363. Dakin v. Hudson, 6 Cowen, 221.) Under this general rule another principle of pleading is to be kept in view, that facts are to be stated for the information of the court, not arguments, or inferences, or matters of law. Facts then must be shown to give jurisdiction, not a mere averment of jurisdiction ; and it must be complete, that is, the court must be shown to have had jurisdiction of the subject matter, and of the persons affected by the proceeding or judgment. The case of Smith v. Mumford, (9 Cowen, 26,) furnishes apparently an approved precedent of a declaration in debt on a judgment in a justice’s court, short of this, in not showing jurisdiction of the person; and so also does Stiles v. Stewart, (12 Wend. 473.) The former case was brought before the court upon demurrer to the evidence, and the latter in arrest of judgment. The court do not, however, in either case, advert to the circumstance as affecting the rule. Upon established principles they were good after verdict, though bad before. The case of Cleveland v. Rogers, (6 Wend. 438,) lays down what I esteem the true rule on the subject. It is referred to in Stiles v. Stewart, (12 Wend, 473,) with the remark that it must be considered as confined to a case of an avowry or other pleading subsequent to the declaration, where greater certainty was required. Lawton v. Erwin, (9 Wend. 233,) confirming the rule in 6 Wendell, was not referred to. In Cornell v. Barnes, (7 Hill, 35,) the rule as above laid down [607] was-re-asserted. A learned note of the reporter contains-the leading authorities on the question, down to and including several additional cases in that volume.
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By the Court,
Morehouse, J.
The question presented is, whether enough is set forth in the plaintiff’s declaration to show that the justice had jurisdiction of the cause in which the judgment was rendered. It would be a matter of deep humiliation to find that a question so frequently before this court had hitherto eluded the scrutiny of its judges, and that an affluence of adjudication relative to the form of pleading proceedings be-forejustices of the peace, and other inferior judicatories, (exceeding that upon any other isolated question,) had only served to render it more doubtful and obscure. It is not to be disguised that the court in its decisions have not always confined their opinion to the case actually under consideration, and that in citing authority for the reasoning of the judge the rule in cases dissimilar in facts has, by the profession less learned, been confounded with or mistaken for the established precept of the .court in the case decided. In this remark I would not be understood as censuring the learned diligence of the late justices of this court. To the habitual completeness of their investiga[606] tions the profession is indebted for much learning, and to their example, for a new impulse in the desire for more.
There are a variety of oases in setting forth the proceedings of an inferior tribunal, officer, or court, where the rules and the reasons for them, though analogous, are distinguishable. In some the proceedings are according to the common law, though the jurisdiction be by statute; in others summary and contrary to it. I propose to confine myself to the case before me. It was settled in our own courts, before Chitty wrote, that in setting forth the proceedings of an inferior court, after stating enough to give it jurisdiction, it was sufficient to add, talitur processum fait, such an act was done by the court. (Service v. Hermance, 1 John. Rep. 91. Peebles v. Kittle, 2 Id. 363. Dakin v. Hudson, 6 Cowen, 221.) Under this general rule another principle of pleading is to be kept in view, that facts are to be stated for the information of the court, not arguments, or inferences, or matters of law. Facts then must be shown to give jurisdiction, not a mere averment of jurisdiction ; and it must be complete, that is, the court must be shown to have had jurisdiction of the subject matter, and of the persons affected by the proceeding or judgment. The case of Smith v. Mumford, (9 Cowen, 26,) furnishes apparently an approved precedent of a declaration in debt on a judgment in a justice’s court, short of this, in not showing jurisdiction of the person; and so also does Stiles v. Stewart, (12 Wend. 473.) The former case was brought before the court upon demurrer to the evidence, and the latter in arrest of judgment. The court do not, however, in either case, advert to the circumstance as affecting the rule. Upon established principles they were good after verdict, though bad before. The case of Cleveland v. Rogers, (6 Wend. 438,) lays down what I esteem the true rule on the subject. It is referred to in Stiles v. Stewart, (12 Wend, 473,) with the remark that it must be considered as confined to a case of an avowry or other pleading subsequent to the declaration, where greater certainty was required. Lawton v. Erwin, (9 Wend. 233,) confirming the rule in 6 Wendell, was not referred to. In Cornell v. Barnes, (7 Hill, 35,) the rule as above laid down [607] was-re-asserted. A learned note of the reporter contains-the leading authorities on the question, down to and including several additional cases in that volume.
Before proceeding to examine the specified causes of demurrer, I would remark that whether the justice actually had jurisdiction of the cause, is a question distinct from the one under consideration. It does not, and need not, appear by the pleading, whether there' was an appearance and contestation before him or not. Whether the form of the summons, its service and return, and all things essential to confer jurisdiction in the cause, if 'the defendant did not appear, concurred, is matter of proof on the trial. What errors committed in matter of substance or in practice, by the justice, available on the trial and which would reverse the judgment if brought up on certiorari, and what degree of jurisdiction his docket will show, and what the court will presume in the absence of record evidence, are for the future. The form of a declaration upon a judgment setting forth the whole proceedings in the same or an inferior court, will be found in Pitt v. Knight, (1 Saund. 86,) and the abbreviated form in note (2) to that case, (Id. p. 92.) At a certain court, &c. held at, <fcc. A. levied his certain plaint against B. in a plea of debt, &c; and thereupon such proceedings were had that afterwards, cfcc. it was considered by the court that A. should recover against B., &c. This- order of statement.is. substantially reversed in the plaintiff’s declaration. The substance of it methodized is, that on the 8th of May, 1844, the plaintiff commenced a suit before the justice in an action of assumpsit, founded upon contract, by summons issued that day, returnable before the justice at his' office in Norwich, on the 17th of May ; that the summons was personally served more than six days before the return day thereof; and that on the 17th of May the justice gave a judgment for the plaintiff for one hundred dollars damages, and ninety cents costs. The causes of demurrer are not enumerated in the demurrer book. The defendant in his points condenses them into fourteen, the plaintiff’s analysis swells them to twenty-five. They may be considered in groups. The two first are that the declaration [608] does not show that the justice had jurisdiction, or that process issued. The declaration answers the first by showing the nature of the action, and the amount claimed ; and the statute, (2 R. S. 324, § 2, sub. 1, 3d ed.) of which the court will take judicial notice, gives a justice jurisdiction in such case. The second cause of demurrer is untrue in fact. Process, the declaration avers, was issued. The residue relate to the form and substance of the process, its service and return, and the proceedings which were or ought to have been had after it to authorize a judgment, none of which are required to be set forth in the declaration, though essential to be proved on the trial of this cause with greater or less strictness and certainty. The form of action stated in the summons, the amount claimed, the time and place of appearance, the manner of service and the return of the officer, if the defendant did not appear, may be important in determining the question of jurisdiction. (Yager v. Hannah, 6 Hill, 631.) That is to be shown affirmatively by the plaintiff. If the justice had not jurisdiction of the person of the defendant, and of the cause, the judgment cannot be upheld. This principle is applicable to all courts, from the highest to the lowest, and it may always be set up against a judgment when sought to be enforced, or when any benefit is claimed under it. The want of jurisdiction makes it utterly void and unavailable for any purpose. (Mills v. Martin, 19 John. Rep. 7. Burden v. Fitch, 15 Id. 141. Latham v. Edgerton, 9 Cowen, 227. 4 Id. 61, 82, 540. 6 Id. 585. 7 Id. 468.)
The plaintiff’s declaration is defective in not making the general statement before indicated of proceedings intermediate the service and return of process and the giving the judgment. The imperfection would be cured by a verdict, and this court is, by statute, to disregard it. It is not a defect specially expressed in the demurrer, and the plaintiff, by the same statute, is entitled to judgment absolute. (2 R. S. 448, §§ 21, 22, 23, 3d ed. Id. 352, §§ 4, 5, 6, 1st ed.)
Judgment for plaintiff.