In re Leary

New York Supreme Court

In re Leary

34 N.Y. Sup. Ct. 564

DecidedSeptember 15, 1882

StatusPublished

This text of 34 N.Y. Sup. Ct. 564 (In re Leary) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Leary, 34 N.Y. Sup. Ct. 564 (N.Y. Super. Ct. 1882).

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Opinion

Barnard, P. J.:

A court martial consisting of one officer has only jurisdiction of “ delinquencies and deficiencies ” that occur in the military force. (Sec. 201, chap. 547, Laws of 1880.)- It requires a court of three officers to hear and try offenses “ other than delinquencies and deficiencies.” (Same section.) The charge for disobedience of orders requires a three-officer court. “ Said court shall not have jurisdiction thereof unless the same (charges) shall have been approved by the officer ordering the court.” A copy of the charges are to be served. (Same section.)

A failure to plead to the jurisdiction of the court only waives such matters as an accused party may waive. He may waive notice and a copy of charges, but he cannot by omitting to plead lack of jurisdiction confer it upon a court which has none by law. In such a case the general rule is that consent cannot confer jurisdiction. It was extremely improper for the president of the court martial to return a letter from relator to II. C. King. It was not a part of the trial. It is a private letter to King. It is not proven. It could have no effect upon an invalid judgment.

The judgment should be reversed, with costs.

Dykman and Cullen, J J., concurred.

Order and judgment reversed, with costs.

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Barnard, P. J.:

A court martial consisting of one officer has only jurisdiction of “ delinquencies and deficiencies ” that occur in the military force. (Sec. 201, chap. 547, Laws of 1880.)- It requires a court of three officers to hear and try offenses “ other than delinquencies and deficiencies.” (Same section.) The charge for disobedience of orders requires a three-officer court. “ Said court shall not have jurisdiction thereof unless the same (charges) shall have been approved by the officer ordering the court.” A copy of the charges are to be served. (Same section.)

A failure to plead to the jurisdiction of the court only waives such matters as an accused party may waive. He may waive notice and a copy of charges, but he cannot by omitting to plead lack of jurisdiction confer it upon a court which has none by law. In such a case the general rule is that consent cannot confer jurisdiction. It was extremely improper for the president of the court martial to return a letter from relator to II. C. King. It was not a part of the trial. It is a private letter to King. It is not proven. It could have no effect upon an invalid judgment.

The judgment should be reversed, with costs.

Dykman and Cullen, J J., concurred.

Order and judgment reversed, with costs.

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Bluebook (online)

34 N.Y. Sup. Ct. 564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-leary-nysupct-1882.