Simmons v. De Barre

8 Abb. Pr. 269, 17 Bosw. 547

Opinions

By the Court.

Footnotes

•

*—Bosworth, Ch. J.

If the City Court of Brooklyn is an inferior court, within the meaning of the rule that the jurisdiction of an inferior court will not be presumed in support of the validity of its proceedings, but on the contrary enough must appear upon its records, or be otherwise proved, to show that it had jurisdiction of the subject-matter of the action and of the parties, in order to make its records evidence in another court; the present appeal may be briefly disposed of.

That court has no jurisdiction of any transitory action, unless one of two facts exists. All of the defendants in it must either “ reside or be personally served with the summons within said city.” (Laws of 1849, 170 ; § 2, subd. 2.)

The judgment or decree, given in evidence, does not even recite that De Barre resided within that city, when that action was or may be claimed to have been commenced, or when the judgment on it was rendered ; nor that he was ever personally served with the summons in that action within that city, or elsewhere.

The act organizing that court was passed the 24th of March, 1849.

Section 8 of the Code does not in terms apply to that court any provisions of the Code, except sections 69-126, both inclusive: that court is not named in section 9. It is by no means clear, therefore, that the concluding sentence of section 139 applies to that court: that sentence was incorporated into the Code by the amendments enacted in 1851. (Laws of 1851, p. 887, § 139, p. 904, § 470 (§ 2); Ib., Appendix, p. 51, §139 ; Laws of 1849, p. 644, § 139.) If it does not apply to that court, then the voluntary appearance, in, any transitory action, of a defendant not residing within that city, would not give to that court jurisdiction of such action. Consent cannot confer upon any court jurisdiction of an action, when jurisdiction of it is not conferred by law.

To constitute a court a superior court (within the meaning-of the rule we are considering), as to any class of actions, its jurisdiction of such actions must be unconditional, so that the only thing essential to enable the court to take cognizance of them is, the acquisition of jurisdiction of the persons of the parties.

In Kempe’s Lessee a. Kennedy, et al. (5 Cran., 173), Chief-justice Marshall, in speaking of the Court of Common Pleas for the county of Hunterdon, New Jersey (the judgment of which, and the proceedings upon it being relied on as a defence), said that “ in considering this question, therefore, the constitution and powers of the court, in which the judgment was rendered, must be inspected.

“ It is understood to be a court of record, possessing, in civil cases, a general jurisdiction to any amount, with the exception of suits for real property.

“In treason, its jurisdiction is over all who commit the offence. * * * ; with respect to treason, then, it is a court of general jurisdiction, so far as respects the property of the accused.” The action was ejectment, and the defendant made title under a judgment of such Court of Common Pleas, confiscating the real estate in question, by reason of the treason of the person who was the common source of title.

The New York Common Pleas has been decided not to be an inferior court within the meaning of the rule under consideration, because, by 2 Lev. Stats., 135, 2d ed., 1, it had power to hear, try, and determine “ all transitory actions wherever the cause may arise,” and was also a court of record proceeding to the general course of the common law. (Foot a. Stevens, 17 Wend., 483; see Hart a. Seixas, 21 IUb., 40.)

In Frees a. Ford (2 Seld., 176), the present ’county courts of this State were held to be inferior courts, and that it was essen tial to the validity of their judgments that “ all the facts necessary to give the court -jurisdiction, as well over the subject-matter of the suit as of the parties, must appear in the record.”

By section 30 of the Judiciary Act (Laws of 1847, 328), their "jurisdiction extends to the transitory actions named in it, “ when all of the defendants, at the time of commencing the action, reside in the county in which said court is held,” and “ when the debt or damages claimed” do not exceed the sums specified.

They had not therefore a general and unconditional jurisdiction of any transitory action ; and were also—in respect to the cases in which jurisdiction of the actions enumerated existed, so far as it depended on the residence of the defendants— limited to those on which the debt or damages claimed did not •exceed a specified amount.

Without entering into a more detailed statement of the facts ■of the various adjudged cases, or of the reasons on which they were decided, we think it may be stated as a settled rule, that when the judgment of a local court in a transitory action is offered as evidence that a particular fact has been judicially determined by competent judicial authority, the record of the judgment will be no evidence of that fact, unless it affirmatively appears by the record itself that all the facts necessary to give the court jurisdiction, both of the subject-matter of the suit and of the parties to it, existed; if the court, by the law creating it, has no jurisdiction of that particular action, nor of a/ny transitory action, unless all the defendants resided or were personally served with the summons within the city within which such •court is required by law to be held.

Such a court is not only one of-limited jurisdiction, but its Jurisdiction of every action; of the actñon itself.\ being made to depend either upon the place where the defendants reside, or the fact that they are “ personally served with the summons” within a designated locality smaller than a county, it is an inferior court, within the common-law meaning of that term.

If the court had a general jurisdiction of an enumerated class of actions, without reference to the place where they arose, or the parties to them resided, or to the amount sought to be recovered, being a court of record, and proceeding according to the general course of the common law, it might be, quoad hoc, a superior court, within the meaning of the rule under consideration.

Having jurisdiction of the action, jurisdiction of the persons of the parties in it might be acquired by their voluntary appearance.

But the difficulty of the present case is, that the court had no jurisdiction of the subject-matter of the smt—of the action itself—unless the defendant resided within the city of Brooklyn, or was personally served with the summons within that city.

Such a court is an inferior court, within the common-law meaning of that phrase. Its judgment, to be evidence in another court, must show on its face that the defendant resided, or-was personally served with the summons within that city, to be,. per se, evidence of a valid judicial determination of any fact", which it purports to decide.

This is not shown by the decree or judgment which was received as evidence that the defendant and his wife had been divorced by that court, in an action between them instituted for that purpose.

But it is insisted that section 4 of the act creating the court,, and the amendment made to section 139 of the Code in 1851, have, together, the effect to enlarge the jurisdiction of that court, and make it more. extensive than it was by the statute-alone, by which the court was created.

That fourth section reads thus: “ The said City Court shall possess the power and authority, in relation to actions in said court, and the process and proceedings therein, as are possessed by the Supreme Court in relation to actions pending in the said Supreme Court. And all laws regulating the practice of the Supreme Court, and the course of procedure therein, shall, as far as practicable, apply to and be binding upon' the said City Court; and the said City Court shall have power to review all of its decisions, and to grant new trials.” (§4, Laws of 1849, p. 171.)

We think this section must be construed as prescribing the practice in actions in the City Court of Brooklyn, and its power-over the process and proceedings in such actions; and that it cannot be so construed that subsequent amendments of the Code,. not refering to that court, shall be held to enlarge, and as having been intended to enlarge, its jurisdiction.

If the Legislature had intended, by the amendment made in-1851 to section 139 of the Code, to extend the jurisdiction of that court, by force of such amendment, to all transitory actions . against persons not residing within the city of Brooklyn, on their voluntary appearance therein, it would seem that section 8 would have been so amended as to designate it as one of the • courts to which that section was applicable, and that section 9 would have been so amended that such court would have been named in it.

It is quite clear, as we think, that section 4 of the act creating that court does not apply to it the provisions of section 135 • of the Code, so as to enable a person to commence an action in it, against a sole defendant not residing within the city of Brooklyn, by the publication of a summons. The concluding sentence of section 139, as it was amended in 1851, does not, in • our opinion, affect the question of the jurisdictional capacity •of the court, nor change it from an inferior to a superior court.

This view renders it unnecessary to decide the question, whether a copy of the judgment of a superior court, in an action of -divorce, without a copy of the pleadings, would be competent and sufficient evidence that the parties had been and were • divorced by a regular and valid judicial determination,—pro- . vided the judgment recites the nature of the action, and the appearance of the parties in court, and that they were heard on .the application for judgment. Being an inferior court, it was .necessary to produce a judgment-roll, which showed on its face .that the court had jurisdiction both of the action and of the persons of the parties. This not having been done, the judgment was erroneously received as evidence, and the order . granting a new trial on account of that error, must be affirmed with costs.

It may also be observed, that if “ a voluntary appearance” of JEt. B. De Barre would, as effectually, give that court jurisdiction of that action, as the personal service of a summons upon him within the city of Brooklyn, the judgment does not recite that he caused his appearance to be entered, nor that he per•sonally appeared therein, nor that any attorney of the court :served “notice of an appearance or retainer generally” (Rule 11) for him in that action; nor that “ Mr. Samuel Brown” who •was .heard for him, was an attorney, or had served notice of appearance for him, or that he had been retained for him in; that action.

Order affirmed.

Present, Bosworth, Ch. J., Hoffman, Woodruff, Pierrepont, and Moncrief, JJ.