The Mountaineer. [volume] (Great Salt Lake City [Utah]) 1859-1861, 1861-02-09

+ 49, go
Jurisdiction Is not violated Wy the statute
.of Utah giving another court tho right g
try all cases 81 divorce. But the cues
ton arises, Is not tlte common law lurls-.
'dictiea or tile court tramPlsd upoft. COM
mon law Jurisdiction, we understand j %
mean the power Of the court to hear allll
determine cases accordlngto The ralfs q
the ccmmoalaw StntuteS arc lrvqGegt.
" invoked N did Of the common lawi pat
common law courts, rs such, qre net &c
pendent upon statutes, atless theT nave
beconle Incorporated into, and form part
.ot The common law, wEieIiis The case with
some nflhe Cd English stataits, lis no'
part cfthe powers of conmotllaw courts 70.
aitsedby statute, 10 grant divorces sroI1 bod
and board Cases Of this kind do not be-
long 70, their Jurisdiction, WlIe,l sitting
strictly as common law courts. Opposed
60 thls view gc are referred 60 the case Ct
Wiglitman ": Nightnian, I John CHI Il.
.S43.
That was n case where the plantiiflnat.
yFiea The defendant under Et.Gf insanity,
bud never lived with her husband, and
had continued under alteration Of mind,
with occasional lucid Intervals
Tie question arose before ils elancei.
Tor whether tie court could take iurisdic-
ton, us there was no sfstate ia tile state
of'New York for divorce q rigtale pi,ltfi-
Hleasi except Id cnse Of sduIllEy, aad the
raNfe FOR divorce nnat arise after mafFfage
The learned chancellor declared the con
trart null and void ab fiaitid on tho ground
that the plaintiff bad rot tie cdpahiiily.
TO Contract, no more than IL she had been
an idiot. But the court expressly. says
that the power resides some8here 60 de-
clare the contract void, and contends that
i must reside in that court, Us ii has an
exclusive Jurisdiction, not osIy OYER cases.
q iuhacy, but of matrimonial causes. This
decision, WREN properly examined, will Be
found to sustain the position We have as
stnIed, that proceedings for divorce do.
not necessarily belong to either the
rhancery or common law jurisdiction Of
the district courts.
Two questions only remain for orr con-
sideration. First, whethert the legislature
las granted 10 the probate court, by Civ
ng Il jurisdiction III all eases of divorce,
more Judicial power than ii is authorized
10 confer by the Organic Act. And see
md, whether the defendant below, after
having answered, could raise the question
i jurisdiction. The judicial power or ihe
Territory is vested in certain courts.
Among those named Is the probate court.
fhs jurisdiction Of these courts shall be
United by LAW. We have seen that
lefther the common law orchancery juris-
fiction Of the district courts is infriaged
y providing for. the probate court to
rant divorces This being: the case ii
oliows that under that clause Limited by |
ls" tie legislature has the right 10 Sc |
oct another forum 10 try, and ciethe
mother tribunal with the power TO hear
nd determine actions for divorce. r. !
This trlieln,d is the probate court, aud
re zee nothing Incompatible With the pro.
isiops Of the Organic Act, or the organi- (,
alton Of lhe district courts 10 prevent
he legislature fvom passing the lssss con
eEffng exclusive JHrisaycrien IN sucti ensps]
ipoH this court. Butt il may be said that
he defendant could not object To- the Ia,
isdiction after having answered. This
you'd be true If tile. court. bad jariSllic.j
ion If the suhject-lnaster, aud the fsdg.
nent did not appear upoa tEe fsce 81. lie
eeortE cerdHl aoR faaia. So see.ssS
ln.tlp eeiehrdted CASE. of Toorllies KS.
be Unitea States 10 Peters lGl, the
lDctriiie i well settled, that il tho iaigs,
neiit Is not warranted by tie constitution
u. lag Of the lsntl, tho most solemn pro-
seedlings eau confer TO right which is de-.
lied TO any judicial etnHder color Of law,
which can property be. deemed TO have
been done .daraaa iip1 jHdide, that is, BIZ
persons assuming The Judicial function in
he given case without lawful authority, /
Wright vs.. Marsh, Lee aud DeieYan. 2.
9. Greene; 9f. The line which separates
srror IN Judgment from the lIsirpatien Of
power l. very definite, and is precisely
That which denotes the ease when q iadg-
nelft ar decree is reversible only by an
court, or may be de- Jared d
nuiltty coiiaterally when offered in eyi-.
icBce ia an action concerning the matter
adjEtticated, or ppfportiug TO have: been
30: In the one case the record is abSo-
lutte Teritg. in the other mere :, waste
paper. Ii then tie court below exer-
cised a power not conferred by the Ora
game Act, Or the laws of this Territory,
aud not laherent in the court, the Jadg-
Eiient IS VOID, and may be taken adYaE-
tage Of anywhere or before any court.
1t Is a principle rs old as the law id
SELL that consent eanuOE enHfer jGrISCtiC-
ton, and if tho court proceeded 10 try
the case and render the decree in an ac-
ton over which it had no control, the
jurisdiction Of which belonged to another
court, the answer OF the defendant could
not Golfer such Jurisdiction, and the jadg-
me5it is void, go. ~.
That such is the ease, o think we have
ahandRhily shown Gy The fact that actions
Oh divorce do not neceSsarily belong to]
courts Of ehaheery or common law jlrisdie-
ton that they-may be provided Ter by
stalater and the judicial power Of the2ter.
rItoFy residing IN part With the probate
courts, the legislature had the right which
they have exeryised to give thenf the ex-
elusive control over these actions. .:s.
The decree Of the court below is re-
EeEsed: and set aside. r III =
Eyocu REESE d al In Supreme ceqrt,
:,-s@,'< rs. - Utah Territory,