
    William S. Gridley, Resp't, v. The College of St. Francis Xavier, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1893.)
    
    1. Appeal—New tbial.
    An exception to the denial of a motion for a new trial upon the minutes of the trial judge brings no question for review in this court.
    3. Lunatics—Idiot—Jubisdiction.
    If notice of the execution of a writ inquirendo is given to an idiot there is no ground for saying that the proceedings are absolutely void, although no notice was given of the subsequent proceedings, confirming the findings of the jury and appointing the committee.
    
      3. Same—N. Y. Common pleas—Jurisdiction.
    To sustain the jurisdiction of a proceeding de idiota inquirendo in the court of common pleas of the city of New York, upon a collateral attack, it may be presumed that all the proper notices were served upon the idiot, and even that she was present in court at the time any proceedings were taken, in the absence of anything in the record showing that she was not present in court or that the notices were not served.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    
      George Bliss, for app’lt;
    
      Howard A. Sperry, for resp’
    
      
       Affirming 45 St. Rep., 1.
    
   Earl, J.

In 1873, Ann Eliza Owens owned certain real estate, situate in the city of Mew York, subject to the life estate of her mother, Ann Owens. Ann Eliza was an idiot, and in the year mentioned her mother instituted in the court of common pleas of the city and county of Mew York a proceeding de idiota inquirendo for the purpose of having her declared incompetent to take care of herself and her property. That proceeding was carried to a. conclusion in that court. She was found to be an idiot, and a committee of her person and estate was appointed. Some years thereafter she conveyed her real estate to the defendant. In April, 1888, Ann Owens, her mother, leased the real estate for five years from the first day of May following. Ann Eliza died in June, 1890, and a few days thereafter her mother died. After the death of Ann Owens the lessee paid rent for nearly a year to the defendant, supposing the deed from Ann Eliza to it was valid and that it had the title to the real estate and thus the right to receive the rent, both he and it being then ignorant that a committee had been appointed for Ann Eliza.

The lessee claiming that the moneys thus paid to the defendant were paid by mistake, assigned his claim for them to the plaintiff, who demanded the same of the defendant. It refused to refund the moneys thus paid, and then the plaintiff commenced this action to recover them. He recovered, and the defendant has appealed from the judgment entered in his favor.

In this court we can consider only exceptions taken at the trial.

The plaintiff gave evidence tending to show that this money was paid under a mistake of fact as alleged by him. The defendant made no motion for a nonsuit upon the trial, made no request to the trial judge to charge the jury, and took no exception to the charge as made. The record contains hut three exceptions.

The assignment by the lessee to the plaintiff of the cause of action was dated on the 6th day of June, 1891, and was duly acknowledged. The plaintiff offered it in evidence without any further proof of its execution. Defendant’s counsel objected to the assignment as evidence on the ground that it was not an instrument which could be proved by the acknowledgment. It is not now claimed that that objection was well founded. Code, § 937.

After the rendition of the verdict, defendant’s counsel moved for a new trial upon the minutes of the trial judge, and that motian was denied, and the defendant’s counsel excepted to the decision. That exception, as we have frequently held, presents no question for review in this court. It was not taken during the trial, but after the trial was completed.

When the proceedings leading to the appointment of the committee were introduced, the defendant’s counsel objected to them on the ground that, on the face of the papers, the court never acquired any jurisdiction of the proceedings. The objection was overruled and the papers were received in evidence. It is now claimed, and quite strenuously argued by the counsel for the defendant, that the proceedings were utterly invalid because no-notice of them was given to Ann Eliza, the idiot. There are two-answers to this objection. The court of common pleas, upon the petition of Ann Owens, the mother, appointed commissioners de idiota inquirendo, and, in the order appointing them, required that-previous notice of the time and place of the execution of the writ-should be given to Ann Eliza Owens, and the person, or persons,, having the care of her. It was not necessary that she should have notice of the application for the commission. Without hearing her and without notice to her, the court could constitute a tribunal which was to make inquiry into her mental condition. In pursuance of the order, a time and place for the execution of the commission was appointed, and a jury was summoned by the sheriff, and it appears by proof contained in the record of those proceedings that the idiot had notice of the time and place of the execution of the commission. The record does not disclose that she had notice of any of the subsequent proceedings confirming the findings of the jury and appointing the committee. We do not deem it important now to determine whether the proceedings would be absolutely void and a nullity if no notice whatever had been given to the idiot of any of the proceedings instituted upon the petition of her mother, who had charge of her. They would have been invalid undoubtedly in the sense that they-would have been set aside as irregular upon the application of any person who had a right to be heard, as we held in Matter of Blewitt, 131 N. Y., 546; 43 St. Rep., 926. But if notice was necessary, the notice given of the time and place of the execution of the writ was sufficient to give the court jurisdiction of the matter. The person proceeded against by such a writ should have notice of the motion to confirm the finding of the j ury and for the appointment of the committee, and if such notice be not given upon the motion of any person entitled to be heard, a court having jurisdiction of the matter may set those proceedings aside.

But where the person proceeded against has had notice of the vital part of the proceeding, to wit, the execution of the writ, there is no ground for saying that the proceedings are absolutely void But there is still another answer to this objection. The court of common pleas of the city and county of Xew York is, for the purpose of such a proceeding, a court of general jurisdiction, Constitution, art. 6, § 12; Code, § 263, subd. 8, and, therefore, to uphold its jurisdiction, it may be presumed that all the proper notices were served upon the idiot, and even that she was present in court at the time any proceeding was taken, in the absence of anything.in the record showing that she was not present in court or that the notices were not served. It is one of the maxims of the law that “ nothing shall be intended to be out of the jurisdiction of a superior court but that which expressly appears to be so.” Hence, though the existence of any jurisdictional fact may not be affirmed upon the record, it will be presumed, upon a collateral attack, that the court, if of general jurisdiction, has acted correctly and with due authority, and its judgment should be as valid as though every fact necessary to jurisdiction affirmatively appeared. Freeman on Judgments, § 124. It was held in Foot v. Stevens, 17 Wend., 483, that the courts of common pleas of this state are courts of general jurisdiction, and upon a motion for a new trial it will be intended, in support of a judgment rendered in the court of common pleas, where nothing to the contrary is shown, that the court had jurisdiction of the person of the defendant, although there was no averment in the record showing the jurisdictional facts. This is a collateral attack upon the idiocy proceeding in the court of common pleas. It does , not appear from the record that all proper notices were not given, and no proof was offered upon the trial to show that the court did not, in fact, acquire jurisdiction.

Therefore, the objection made by the counsel to the proceedings was not well taken, and it follows that the defendant did not obtain title to the real estate by the deed from the idiot, and that the judgment should be affirmed, with costs.

All concur.  