Wilmore v. . Flack

Enron, J. The General Term of the Common Pleas had no-jurisdiction of the attempted appeal ,to that tribunal. Its appellate power was derived wholly from the statute, and had no existence outside of its permission. An appeal from an *519 order of the Greneral Term of the Marine Court granting a new trial is allowed only upon condition that the appellant consents to a final judgment against him if theorder is affirmed. (Laws of 1874, chap. 545, § 9 ; Gordon v. Hartman, 79 N. Y. 221.) Without that consent there can be no appeal, and much less a'final judgment founded upon it, and impossible without it. , The order and judgment of the Common Pleas was, therefore, without jurisdiction and void, and the judgment entered in the Marine Court founded upon that void mandate was itself equally so ¡Nevertheless, both tribunals have held the contrary, and insisted against the motion of the plaintiff that their action was valid, and the final judgment rendered effectual. They have done so apparently upon the ground that the omission from the notice of appeal of the requisite consent was amendable, and that the appellant was estopped by his appearance in the appellate court and' submission of the appeal to its jurisdiction. That a consent, intended to be given, but omitted from the notice of appeal by mistake, and when the appellant in fact consented, might be inserted nunc pro tunc, may be conceded for the purposes of the argument, but where there has been no mistake because no consent, and the latter was intentionally and consciously omitted, and has never-been given, but steadily and persistently refused, we do not see how it is possible to acquire jurisdiction by an amendment which falsifies the facts .and originates only in the arbitrary will of the court. The right to give or withhold the consent does not belong to the court but to the party : his free choice and option cannot be taken away under the guise of correcting a mistake or oversight. ¡Nor is the plaintiff estopped from raising the question of jurisdiction. His consent to its exercise could not confer it. (McMahon v. Rauhr, 47 N. Y. 67.) If it did or could it is still true that the appellant did not consent to the jurisdiction assumed. He misled nobody. All parties acted in good faith on the appeal, and under a common mistake of the law. The respondents and the court had no right to rely upon the appellant’s interpretation of the act of 1875. Each was quite *520 as much bound to know and recognize the lack of jurisdiction as the appellant himself. At the bottom of an estoppel lies either a fraud or something which operates as such. Here there was none, but simply an honest mistake for which each party and the court were equally responsible. The situation of the plaintiff appears to be one in which there exists a definite right without adequate remedy unless a court of equity can furnish it. The original action of Hillier was wholly for the benefit of the plaintiff. He stood behind it as the party interested and having indemnified the marshal against its consequences. Hillier recovered a judgment. The proceeds of it belonged and were payable to the plaintiff. But an appeal was taken to the General Term of the Marine Court, which reversed the judgment and ordered a new trial. All that followed was a nullity, and yet out of that void action the plaintiff finds himself barred of the new trial by a final judgment against him, and exposed through his indemnity to liability for a serious bill of costs. He at first pursues his remedy at law. He asks the Marine Court and the Common Pleas to set aside the judgment which they had no jurisdiction to render. They refuse. Then he appeals to the power of a court of equity, and is again defeated substantially upon the ground that he has a perfect remedy at law, and that the final judgment entered in the Marine Court was within its jurisdiction, even though the judgment and remittitur of the Common Pleas were absolutely void. The argument is that the final judgment entered in the Marine Court was merely erroneous, and equity will not set it aside for that reason. The ultimate question, therefore, is whether such judgment was merely erroneous and so good until reversed, or utterly void as entered without lawful authority and jurisdiction. In the original action the Marine Court had jurisdiction both of the subject-matter and of the persons of the litigants, and so might have rendered a final judgment, equivalent in its effect to that now upon its records. But it did not do so. It made no such determination of its own. On the contrary its determination was an award of a new trial. The final judgment entered was *521 that of the Common Pleas, registered or docketed, so to speak, in the Marine Court, in obedience to a special statutory authority. The act of 1874, which authorized an appeal to the Common Pleas from an order granting a new trial, required as a condition the appellant’s consent to final judgment, and directed that “ effect shall be given by the appellate court to such stipulation, if necessary.” (§ 9.) The act of 1875 more specifically provided that the appellate court “may render judgment absolute upon the right of the appellant.” So that the final judgment here was that of the appellate court, and if absolutely void for want of jurisdiction, how could it become less defective because remitted to the Marine Court and entered on its records ? Is its essential character changed by that process % If upon the judgment for costs thus entered in the Marine Court proceedings to collect were instituted and the judgment debtor resisted on the ground that the judgment was void, would it be a sufficient answer that the judgment was good until reversed ? Suppose that this court on a similar appeal should render a decision without a quorum, and send down its remittitur, and its judgment should be made by formal order the judgment of the Supreme Court, would the latter be merely erroneous and good until reversed, or absolutely void and a mere nullity ? We think in such case the judgment entered on the remittitur gains no new validity beyond that which it had in the appellate court, but remains void if it was so in fact when remitted to be enforced. ■ If a judgment should be rendered in justice’s court which was absolutely void for want of jurisdiction, and thereafter, upon transcript filed, was entered in and became the judgment of the County Court, it would gain from the process no new validity. The judgment entered in the Marine Court was a step in an appellate proceeding and must be measured by the statutory requirements. It was not a judgment of the Marine Court itself, founded upon its original jurisdiction, but the culmination of an appeal dependent wholly for its validity upon the authority of the appellate court. The case, therefore, is not one, as the General Term *522 argue, in which a court of equity is called upon to review a mere error of law committed by another tribunal, but one in which a void judgment bars the rights of the plaintiff after his-remedy at law has been exhausted. The 'Special Term seem to have thought that the legal remedy was not exhausted, and argue that the judgment for costs has not yet put in peril the plaintiff’s liability as the marshal’s indemnitor, and if it should, he might defend on the ground of the invalidity of the judgment. If-sued on his bond in the Marine Court the defense would only renew the question upon which that court and its appellate tribunal have already decided against him. But he has a further right, and that is to the new trial which the Marine Court awarded him and that he cannot have, unless equity can remove the obstruction of the final judgment against him. The whole difficulty in the case originated in a mistake as to the jurisdiction of the Common Pleas over the appeal sought to be taken : a mistake in which both parties shared and which the court did not correct. That mistake resulted in a judgment of the Common Pleas, which was entirely void and did not become valid by being remitted to the Marine Court and made its judgment. In such a case ’ we think equity may relieve, and that the plaintiff’s complaint, therefore, contained a good cause of action. The judgment of the General Term should be reversed and judgment rendered for the plaintiff on the demurrer, with costs. All concur. Judgment accordingly.