The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-09

LAW INTELLIGENCE.
Interesting Law Decision a. 20 che Jurtsdic-
tion or tho Superior Court.
SUPERIOR ooUsT-sPEcIAL TKRn.
DEC. 8.-JosspA Mohoney against John E. PEN
man, kiehard Thompson and DAME. Pesman.-
HoPFMAS, Jon the ed Of April, 1850
the plaintiff recovered judgment against the
defendants in court described as ct ne Circuit Su-
perior Court Of Law and Chancsry for Frederi *
County, in the State Of Virginia /" for $780, with
legal interest until paid, and his costs.
The plaintiff AYERS in his complaint that such
court was court Of record Of the State of Virginia;
that he is the owner of the judgmen and that tho
defendant ia indebted to him in the sum of $500,
with interest for which he prays judgment.
The defendant Daniel Penma !, by ans er, re-
serves the right to object to the Jurisdiction, and
that the plaintiff shows no cause of action. He
tnen first, denies the recovery Of tho Judgment in
the court alegei; second he says that there was
no such court known at the alleged time as the
court described; third, that such described court
was not court Of record; fourth, that there was
not, at the time alleged, any judgment of such
court valid in point of Law against the defendants,
at the sui, Of the plaintiff; ffth that the plaintiff
Was not the owner of such Judgment In the COM
plant mentioned, does no sue as executor, ad-
nnistrator trustee Of an express trust or by au
shorty Of any ststute enabling him TO sue without
j lining the person for whose benefit he sues;
sixth, that after the accruiug Of the cause OF
action. and before commencing this action, the
plaintiff issued q writ of feri facias, under
tie seal Of the said Circuit Superior Court Of La
and Chansesy for Frederick county in the State of
irUiat ed N har;rr ~
who levied under the same upon goods and chatteis
OF the def ndsLts and raised money enough to sat-
sfy the said judgment. Seventh, that at the com.
mencement OF this action there was not the sum o.
eight hundred dollars, any sum, due to the plain
tf on suc1 judgment. The plaintiff in his repl
denies the issuing Of execution AYERS that he is
The cwaer Of tho judgment; and says that the whole
OF the amount is due and owing to him. The plain
( Il produced at the trial judgment record of the
County Court Of Frederick, from which it appears
that tho present defendants returned in cuytO.
and acknowledged the action against them for
O25 6s; thas the present plaintiff was plaintiff in
snch action; that judgment was recorded for that
sum, and execution Issued to recover it, of which
there was no return. The recovery of the judg.
ment appears to be the I'D OF April, 1850 The de.
ftDdants Offered in evidence deed Of trust dated
the 9th April, 1850, executed by ali the defendants
tor the benefit Of ali their credtors and ofs red TO
show that the JUG gment was confessed, after the
execution OF SUCH deed and dissolution Of the
firm.
The Judge rejected the evidence.
The Defendants also offered copy Of the opinion
of the presiding judge of the Circuit Court of the
county Of Frederick wherein the present plaintiff
and the present defendants were parties, in VIII On
the judgment confessed was declared void. This
evidence vas also rejected.
A case was maze, with liberty 10 turn the
same into bil q. Of exceptions. 1t does
defendants were served In this action. There is
only an answer Of enc Of them Dsniel Penman),
srved although the reply Is to the answer Of PEN
Of Appeals, (Prees rs. Ford, selden l7e, and
Cason W. Corley, Seden's notes 81, If apparently
Inconsistent in some Of tie language used are re-
concilable upon the facts. The latter case came
Cou,t, and reported in S Sandford, 454 At
page &66, the effect Of the amendment sho wing the
residence OF the defendants ~ to exhibit juris
d!ction, after the original bill had been taken
there taken il All med in the Court Of Appeals.
The position in Prees Ford, Is therefore unaf-
fected, and the jurisdiction Of this court must ap
pear on the record 1t does 80 appear, when it ap-
contract has been personally served With process;
o resides within the city OF New York, or where
al the defendants, without regard to the nature OF
ne action reside, Or are served within the city,
r,sdictloa appears on this record Nothing tending
10 show jurisdiction appears. unless the voluntary
appearance and answer Of Daniel Penman. claim
ing at the same time the benefs Of the objection, Is
sufficient There are, then, two questions: Is such
an appearance and answer an implication Of his 10
sidence, or of his being personally served within
the city or consent to jurisdictioni Next, u he
In Buckle Va. Eckhah 6 Comstock, 1927, the Court
of Appe ais held that where bill Was filed against
persons not residing within the circuit Of
Vice Cbsscsllor. and the residence $50 S; elss
voluntary appearance BY solicitor did not give
jurisdiction and his allowing the bill TO be taken as
confessed old not bind them. "The residence with.
in the circuis was jursdictonsl fact, which must
exist before tne court act at all, either by is
suing process or accepting the appearance OF do
fendant.S 1t is necessary to give jurisdiction OF
the cause, mot Of the person. In such case there
ON the record.-Per Gardiner, Justice. Upon this
point the csse Of Briokneli Field and another,
6 Paige, 442D deserves much sttention. judg-
ment bad been recovered BY the defendants against
State Of Mass achusetts. An action Of debt on udR-
sment was commenced In the Supreme Court OF this
State BY the def ndants against the plaintiff The
O ,or sIs0. me enntshs aound s'n wss
flied before the Vice Chancellor Of the first circuit,
neither Of the defendants residing In such circuit
but one in Westchester county, and the other out
Of the State. The Chsncsllor held that the subject
matter having no locality, the question depended
up0n the fact whether the suit instituted in the Su
preme Court was cause or matter OF action aris-
ing W1tnln the hret circuit. II . Dill couI0 nave
been sustained before such suit was commenced, it
was evident ehat the Vice Chancellor had no jurls-
d,cton. He incned to tho opinion he possessed it,
ON tho grousd of such suit in the supreme Court.
(see Paige, 1911 The case Of Burckle vs.. Eek
hart, Is Coaastock 1872 was decided ia December,
1s49 ana in April, 1851; the l39th section Of the
Code was amended by adding to it the clause, "a
voluntary appearance Of q defendant is equivalent
to personal service Of summons upon him." In
Granger VI. Swartz I'll Legal OBJ, 346D In
this court, the learned justice says, admit
that the voluntary appearance Of the defendants I'M
sier this section, has tue same effect ~ service o.
summons on them, upon the day Of appearance would
lave had. Tho clause referred 70, takes away then
the right TO appear with reservation u An objec-
ton to juIisd when such objection 10 purely
personal. The defendant here cannot appear
with protest. and now cay that the record does mot
ally Aaother question, then, remains: Is he joint.
~ liable with the other defendsnts2 The case OF
lBisley ". Palmer, Il HILL 1927 il referred TO: Pro