Clyde & Rose Plankroad Co. v. Baker

Welles, Justice. Under the facts stated by the plaintiffs’ counsel in his opening, and which were offered to be proved, the jurisdiction of the county court did not depend upon the residence of the defendant, nor whether such residence was in. the county of Wayne. That fact would be important, on the question of jurisdiction, only in a case where the action was. originally commenced in the county court. If it was necessary in this case that the complaint or summons, or any of the pleadings, should show the defendant to have been a resident of the county of Wayne at the time of the commencement of the action in the county [375] court, under § 60 of the Code, the same would be equally necessary in all cases brought into that court, in pursuance of that and the next five preceding sections:—and it would follow that an answer, in an action before a justice of the peace by a defendant, who was not a resident of the same county with the justice, showing that the title to real property would come in question, accompanied by the proper undertaking, would oust the justice of jurisdiction, without giving the plaintiff the right to continue the prosecution in the county court, or affording him any other remedy, excepting to bring his action in the first instance in the supreme court, or some county court, without reference to the amount of his claim, or of suing before a justice in the county where the defendant resided; and the consequence would be the same if the expression, “ time of its commencement,” in the first subdivision of § 30, is to be understood as referring to the time of the commencement of the action in the county court; because the defendant might remove from one county to another after the discontinuance before the justice, and before the action was commenced in the county court; to do which, the act allows the plaintiff thirty days. It follows that it was entirely immaterial where the defendant resided. The justice had acquired jurisdiction of his person, and that, with the proceedings which ensued before him, was all that was necessary to give the county court jurisdiction. The only consideration which has occurred to me, as presenting any difficulty in the way of the plaintiffs proceeding with the trial at the circuit is, that the copy of the summons and pleadings, which is supposed to guide the court in regard to the issues to be tried, do not show that the county court had jurisdiction of the parties. But this, as I shall attempt to show was not indispensable. I doubt very much whether it is the duty of the court, after the trial is moved on, to entertain an inquiry into the question of its jurisdiction over the person of the defendant, provided enough appears to show that such jurisdiction may exist, which was the case here, provided the counsePs opening statement was true. There is no statute, or rule of practice, requiring the facts [376] stated to be in writing, or to be incorporated in the copy pleadings. Some practitioners have pursued the course of introducing them into the declaration in cases before the Code, in the form of a suggestion; but it never was held to be an issuable averment. (Tuthill agt. Clark, 11 Wend. 642.) What the practice has been under the Code, I am not advised. I do not think it was necessary, either before or since the Code was enacted. I think the circuit court should have suffered the trial to proceed, and the prevailing party could have made the facts in question a part of the judgment-roll by attaching thereto the proceedings before the justice, including a copy of the undertaking, with such suggestions as were necessary to show their application. (Code, § 281, 2d sub.) I see no more objection to this, than in annexing to the judgment-roll the order of the county judge, by which the supreme court acquired its jurisdiction in this case—which would be indispensable to show a good and valid judgment by the judgment-roll. Any untrue or unwarrantable suggestion which a party might cause to be attached, would, on motion, be ordered to be detached from the roll. In this case, the plaintiffs offered to produce the pleadings and proceedings before the justice, and annex them to the pleadings. The court refused to allow this to be done. What more could properly have been required of the plaintiffs, I am at a loss to conceive. I have shown, I think, that it was unnecessary to show, in any way, that the defendant was a resident of the county of Wayne : and if the facts which gave the county court jurisdiction should be made to appear by the copy pleadings, or by papers or proceedings in conjunction with them, I know of no more appropriate way than that which was offered to be pursued. "For these reasons, I think, a new trial should be granted— with costs to abide the event.