
    WILLINS a. WHEELER.
    
      Supreme Court, Second District: General Term,
    
    
      February, 1859.
    Jurisdiction of Justices’ Courts.—Appeal.—Error of Fact
    DETERMINED ON AFFIDAVIT.
    A non-resident, sued in a justice’s court by long summons, on the return day appeared before the justice, and after stating that he did not appear in the action, that he was a non-resident, and declined further to plead, he left the courtroom. The plaintiff obtained an adjournment, and on the adjourned day took judgment. The defendant appealed to the county court, and there offered affidavits to prove his non-residence, but the court disregarded them on the ground that they should have been offered below, and affirmed the judgment.
    
      Held, error. The judgment was void, for the court had no jurisdiction, and the defect was an error in fact, which should be reviewed on appeal under section 366 of the Code.
    The case of Barnes a. Harris (4 Comst., 374), commented on and limited.
    Appeal from a judgment of the county court of Kings county, affirming a judgment of a justice’s court.
    Willins sued Wheeler in a justice’s court of the city of Brooklyn on the 27th day of February, 1858, by a long summons returnable on the 10th day of March, 1858. On the return day of the summons the defendant Wheeler appeared before the justice and stated that “ he did not appear in the action, that he was a non-resident,” and declined further to plead. The defendant then left the court-room, and an adjournment was taken for one week. On the adjourned day plaintiff appeared, entered his complaint and took judgment for the amount demanded in the summons: the defendant then appealed to the county court of Kings county, and on the appeal offered as evidence of his non-residence two affidavits which were read : the county judge was of -the opinion that these affidavits should have been offered in the court below in abatement of the action, and refused to entertain them on appeal, and affirmed the judgment of the justice. From his decision the defendant now appealed to the general term of the Supreme Court.
    
      O. B. Wheeler, for the appellant,
    urged that as there was an error in fact in the judgment of the justice, the affidavits offered on the appeal to the county court should have been admitted by the judge as provided for in section 366 of the Code, and the judgment of the justice reversed.
    
      Gilbert R. Lindsay, Jr., for the respondent,
    argued that as the return upon the summons showed that the defendant was personally served within the jurisdiction of the court, he was therefore prima facie amenable to its jurisdiction; and that to oust the justice of jurisdiction acquired by proper service, he should have proved by affidavits or other evidence, on the return of the summons, the fact of his non-residence, and in failing to do so, he should not he permitted to take advantage of his own laches on an appeal, since the statute relative to the issuing of short summonses against a non-resident provides no means for a plaintiff to ascertain the fact of a defendant’s residence or non-residence.
   By the Court.—Emott, J.

If Wheeler was a non-resident of the county of Kings, the justice acquired no jurisdiction of his person by the service of the summons which he issued, and which was returnable more than four days from the date thereof. Section 33 of the non-imprisonment act (Laws of 1831, ch. 300), not only prescribes a short summons as the only process by which a non-resident can be sued in a j Mice’s court, in cases where a warrant cannot be issued, but goes on to declare that if such a defendant is otherwise proceeded against, “ the justice shall have no jurisdiction of the case.” In Harriot a. Van Cott (5 Hill, 285), it was held that a justice’s judgment against a nonresident of the county, sued by long summons, was void, and would not justify a seizure of the goods under execution, in a suit against the plaintiff for taking them. In Bourie a. Mellor (6 Ib., 496), the same rule was held as to a judgment in a suit commenced by a long attachment against a non-resident. The defendant in the present case did not appear so as give the justice jurisdiction. He appeared at the return-day of the summons to state that he was not a resident of the county of Kings. I do not see why this was not a good plea to the jurisdiction. But as the justice chose to disregard it, and proceeded after one adjournment to take testimony and render judgment against the defendant, the objection which he thus attempted to interpose, certainly was not waived nor obviated.

' The judgment was entirely null, and the plaintiff could not enforce it in any way. Whenever and wherever the defect in jurisdiction is properly brought to the knowledge of the court, it must be fatal-to the judgment, and to every proceeding under it. It is said that the defendant is bound to appear before the justice and take the objection to the form of the process, or that it was waived. Admitting that what the defendant did was not sufficient to raise the objection in the justice’s court, it is very clear from an unbroken series of decisions, of which those I have cited above are part, and to which numerous others might be added, that such a fatal defect in jurisdiction cannot be cured by a mere omission to take the objection. The defendant is never in court at all, nor in the jurisdiction of the magistrate, and he is not bound to do or say any thing in the premises. The cases upon this point will be found collected, and the point stated by Judge Bronson in his dissenting opinion in Barnes a. Harris (4 Comst., 374-379). If the reasoning of this opinion in which Judge Jewett concurred, does not raise a grave doubt as to the correctness of the point ruled by the majority of the court in that case, it certainly shows the incorrectness of the remark made by Judge Gardiner, in the prevailing opinion, “that upon due service of the process issued, the defendant will be concluded by the judgment subsequently obtained, unless he appears and takes his objection.” That proposition will not be found to be sustained by the authorities cited under it, and it is an obiter diaivm not involved in the decision of the cause. Barnes a. Harris was a question of pleading, and all that it decides is, that in declaring in an action on a judgment in a justice’s court, it is not necessary to aver that the defendant was a resident of the county, so as to show that the long summons was the proper form of process. In other words, it is not necessary to negative the exceptions made by the statute to the ordinary methods of proceeding in these tribunals. The case is not an authority for the doctrine that jurisdiction is gained, or the radical defect in the proceedings cured by omitting to take the objection before the justice. Ho such question was before the court.

But in the case at bar, the objection was brought to the notice of the justice as I have already stated, and if the allegation made by the defendant on the return of the summons was not a sufficient plea in abatement, I see no reason to doubt that the defect was properly before the county court by the affidavits "offered. It does not distinctly appear whether the affidavit was rejected or the objection overruled. Either way the court erred. It is true this method of trying error's in fact upon affidavit is a crude method of procedure, and strikes every well-trained legal mind with surprise. It is a wretched substitute for the clear and simple mode of assigning error's, and trying their existence which we were accustomed to under the former practice. It is a part of the Code, however, and we are bound to administer it to the best of our ability.

As the defendant set up this objection in the county court, in the only way in which the present practice permits, he is- exempted even from the rule which Judge Gardiner states, if that were the law. •

There can be no doubt that such a defect in the process by which jurisdiction should be acquired, is an error in fact. A fact outside of the record which renders the judgment void, and which when properly alleged and proved in any action or proceeding in which the judgment comes in question, will defeat any title or right claimed under it, is sufficient to reverse the judgment in a direct proceeding for that purpose.

The judgment of the county court of Kings county and of the justice must be reversed.  