
    McMahon, Plaintiff and Appellant, v. The Mutual Benefit Life Insurance Co., Respondents.
    1. Where an action is brought by a non-resident against a foreign corporation to recover the sum insured by a life policy; and by the laws of the state in which it is brought, a plaintiff not a resident of such state, may sue a foreign corporation in the Court in which it is commenced, “ when the cause of action shall have arisen, or the subject of the action shall be situated in such state;” and where the laws of such state further declare that in such an action as is brought, “ costs shall be allowed of course to the defendant, . . unless the plaintiff is entitled to costs;” and where such action is brought to trial on issues of fact joined therein by pleadings which contain no allegation showing that the Court has not jurisdiction; and the plaintiff examines witnesses to prove his cause of action and rests; and by their testimony it appears, that the plaintiff is a non-resident, and that the cause of action did not arise in the state in which the action is brought; and thereupon, on defendants’ motion, the complaint is dismissed; the defendants are entitled to recover their costs of such action from the plaintiff, and to a judgment against him therefor.
    2. When costs are allowed, in such a case, it is under the provisions of the statute that the prevailing party shall recover his costs, and that they shall be allowed to the defendant of course, unless the plaintiff is entitled to them. If they are refused, it is not because the Court has a discretion to grant or refuse them, but because it has no power to act in the premises, by reason of having no jurisdiction of the action and of the parties.
    3. Where the Court has jurisdiction of the parties, and for aught that is alleged in the pleadings has jurisdiction of the action also, and an actual trial is had, and the complaint is dismissed by order of the Court, because the uncontradicted evidence, given at the trial, discloses that the Court has no power to determine the merits of the controversy by reason of the non-residence of the plaintiff; the judgment to be entered on and conforming to such order, is a final determination of the rights of the parties in that action, and specifies such final determination, within the meaning of the word judgment, as used in §§ 245 and 280, of the Code. Per Woodruff, J.
    4. In such a ease, it is regular for the clerk to insert in the entry of judgment the amount of the defendants’ costs when they have been duly adjusted. No order of the Court, or of a Judge, directing the costs to be so inserted, is required by the Code.
    (Before Bosworth, Oh. J., Hoffman, Slosson, Woodruff, Pierrepont and Moncrief, J. J.)
    Heard, April 16;
    decided, May 7, 1859.
    This is an appeal by the plaintiff from an order made by Mr. Justice Moncrief, March 5, 1859, denying a motion to strike from the record of judgment, the clause therein which awards to -the defendants their costs of the action.
    The action is upon a policy of insurance upon lives; and the plaintiff sues as assignee of the policy, to recover the sum insured by it. The complaint does not disclose where the plaintiff resides; nor where the person resided to whom the policy was issued, at the time of issuing it. The cause being at issue, on issues of fact, it was regularly brought to trial, before Chief Justice Bosworth and a jury, on the 9th of February, 1859.
    At the trial, the plaintiff examined witnesses to establish his cause of action, and rested. From the testimony given by some of said witnesses, it appeared that the plaintiff, at the time the action was commenced, was not a resident of the State of Flew York, and that the policy on which it was brought was executed and delivered out of said state to a non-resident thereof, and was upon the lives of persons who then resided out of said state. The defendants are a foreign corporation. The defendants moved to dismiss the complaint “on the ground of want of jurisdiction,” and the motion was granted. The defendants procured their costs of the action to be taxed; and entered a judgment dismissing the complaint, and that the defendants recover their costs as thus taxed. The plaintiff moved at Special Term, for an order that such judgment be vacated for irregularity, or that the judgment be amended, “by striking out of it so much as provides for the recovery of costs by the defendants.”
    That motion was denied, and from the order denying it, the plaintiff appealed to the General Term.
    
      0. A. Nichols, for plaintiff (the appellant).
    
      Alvin G. Bradley, for respondents (the defendants).
   By the Court.

Bosworth, Ch. J.

—The complaint does not state where the plaintiff resides, and, of course, does not show that he is not a resident of the state. It does not appear therefore, on the face of the complaint, “that the Court has no jurisdiction of the subject of the action.” The defendants could not demur to the complaint, on the ground that the Court had no jurisdiction of the action. (Code, § 144, sub. 1, and § 427.)

If the defendants had alleged in their answer that he did not reside in the state, that allegation would have been put at issue, ■by 'section 168 of the Code.

The place of residence of a party, in many cases, is difficult to be determined. (1 Bosw., 673.)

Had such an issue been made by the pleadings, and the proofs been such that it must have been determined upon conflicting evidence, it might have been necessary to take evidence as to all the issues, and to instruct the jury that if they found the plaintiff was not a resident at the time of suit brought; they must render their verdict for the defendants, for that cause alone. And if they found he was a resident, then to dispose of the cause, upon its merits, under the instructions given to them relating to the other matters in issue.

If the instructions of the Court, upon the law applicable to the issue of residence, should be deemed erroneous and be excepted to, or if a verdict, on that issue, in favor of the defendants, was thought to be against evidence, the plaintiff would have a right to be heard, at Special Term, on these . questions, and if the decision there was adverse, then on appeal, at the General Term, and again in the Court of Appeals upon the questions of law raised by the exceptions.

The defendants cannot avoid being made parties to an action, in which this question may arise, and if it does, cannot avoid litigating it, until it is determined by a final determination of the action.

The plaintiff has brought them before the Court, and subjected them to the necessity of being parties to such a litigation, by making them defendants in an action, which he has commenced as plaintiff.

It is just that the defendants should have' the costs of such an action, if it is determined in their favor. When they are compelled to litigate the jurisdictional competency of the Court to take cognizance of the action and succeed on that question, they should have the costs of the proceedings in which it arises, and by which it is determined.

The Code is peremptory, that in all actions to recover money, “costs shall be allowed to the defendant,” “unless the plaintiff be entitled to costs therein.” (Code, § 305.)

The plaintiff has failed to recover anything and is not entitled to costs. The Code has made no exception, to the unconditional provision,. that, in such case, costs shall be allowed to the defendant.

The plaintiff contends, that when an action is dismissed for want of jurisdiction to hear it and decide it on its merits, the defendant cannot have the costs of such action.

This question is fully considered in Hunt v. Inhabitants of Hanover, (8 Metc., 343,) under a statute respecting costs, substantially the same as the Code of this state.

The Court decided that in such a case, the defendant is entitled to judgment for costs. In their opinion, they say; that a Court, in which an action is made returnable, “has for some purposes a jurisdiction of the case. It must necessarily entertain jurisdiction, so far as to hear and determine the question of jurisdiction generally. The parties may appear for this purpose, they are entitled to be heard and may demand an adjudication.” “ The action is, therefore, upon its entry, pending in Court.” “ There are, therefore, two adverse parties present, and when the result is that the motion of the defendant to dismiss the action prevails, the defendant is the prevailing party, and, as such, is entitled to judgment for his costs.” (Id., 347.)

“ If costs are allowed at all, in such cases, it is under the general provision that costs shall be allowed to the prevailing party in actions at law. If they are refused, it is not because the Court has any discretion to allow costs, but because the Court has not the power to allow costs, by reason of their having no jurisdiction of the cases and of the parties.” (Id., 346.)

“If the want of jurisdiction deprives the Court of the power to award costs to the defendant in one case, it does in all cases obnoxious to the like objection. It is the fact of the want of jurisdiction that deprives the Court of the authority to award costs, and not the difficulty or the facility with which the Court arrives at the conclusion that the case is not within their jurisdiction." (Id., 346.)

The Court, then discuss the question “ whether the want of that jurisdiction of the action which is necessary to hear and determine it upon its merits, also operates to oust the Court of authority to award the prevailing party his costs ?”

It reached the conclusion already stated. The rule established, as the correct interpretation of the statute there under consideration, is, in our opinion, conformable to the fair meaning and import of the provisions of the Code relating to costs, as well as entirely reasonable and proper in itself.”

The opinion of the Court in that case presents views, which, in our judgment, are not only satisfactory, but are conclusive; that the defendants, in this case are entitled to costs, as a matter of course.

The order appealed from should be affirmed.

Woodruff, J.

—I not only concur fully in the views expressed by Chief Justice Bosworth, but I deem it pertinent to add farther; that the ground upon which it is urged that costs cannot be allowed to the defendants is not that it is not eminently just . that they should be indemnified for the expenses to which they have been subjected, .but that the Court having no jurisdiction have no power to render any judgment, and therefore no power to award costs; and the cases cited so far as they sustain any such proposition rest the decision upon that sole ground. Without pausing to consider whether before our Code of Procedure, it was unqualifiedly true that, when an action was terminated in the defendant’s favor for want of jurisdiction of the action he could not recover costs, notwithstanding the Court had jurisdiction of the subject and of actions of that nature, the sole ground upon which the argument is urged now fails entirely.

Under our Code of Procedure there may be a judgment, indeed in some cases there must by law be a judgment, even though the defendant prevails for want of jurisdiction. And the example stated by the Chief Justice furnishes the illustration. .

Suppose in this case the. defendants had averred in their answer that the plaintiff did not reside in this state, and the action had been brought to trial upon the issue joined upon that averment.

Proofs being taken it would have been the duty of the Court to instruct the jury that if they should find the averment in the answer proved, they should render a verdict for the defendants. And if the averment was proved such would have been the verdict.

In such case the statute in express terms directs that “unless a different direction be given by the Court the clerk must enter judgment in conformity with the verdict,” (§ 264); and thereupon § 311 becomes distinctly applicable. “ The clerk shall insert in the entry of judgment on the application of the prevailing party, . . . the sum of the allowances for costs,” &c., as provided by the chapter concerning costs.

In this instance then, it is plain that the defendants would recover their costs, and have judgment therefor. No specific order or direction of the Judge is necessary. The statute awards to them their costs.

Again, as suggested in the opinion of the Chief Justice, it cannot in principle make any difference whether the cause is terminated in favor of the defendants upon a formal issue made by the pleadings, tried and disposed of by the jury, or is terminated on the trial, upon the objection raised and determined in a mode warranted by our system of practice, though want of jurisdiction is not specially pleaded.

In that case a judgment is, I apprehend, equally warranted by the Code. The judgment in the action is defined to be “ the final determination of the rights of the parties in the action.” (§ 245.)

It often happens that the merits of the controversy are not finally decided, as when a complaint is demurred to for some defect apparent on its face, which does not involve the merits; and yet the final determination of the rights of the parties in the action, is a judgment as above defined. The decision on a demurrer to a complaint, when want of jurisdiction appears on its face, determines the rights of the parties in that action. Thereupon the sections 279 and 280 become expressly applicable, and their terms show that the entry of such determination is the judgment in the cause; thus, “The Clerk shall keep a book for the entry of judgments.” .“The judgment shall be entered in the judgment book, and shall specify clearly the relief granted or other determinatixm of the action/” and section 311, then, as before, requires the clerk to insert in the entry, on application of the prevailing party, the sum of the allowances for costs, &c.

In whatever mode therefore the action is finally determined, that determination may, by these plain provisions, be made the judgment of the Court, and all provisions of the Code in relation to costs, entitle the prevailing party to have them inserted therein.

If I deemed the question otherwise doubtful, I should still be constrained to say that the duty of the clerk is plainly pointed out by the provisions of the Code above referred to, and that he has in the present case done what it is uniformly proper and regular for him to do. He has made his entries in the same manner, and in all respects in conformity with the same practice, - which is proper and regular in all cases, where a nonsuit or order dismissing the complaint is directed on the trial. He cannot be required, nor is he at liberty to deliberate upon the question and decide whether the party is entitled to costs, on an inquiry into the reasons or grounds which induced the Court to order such nonsuit. And therefore in my judgment, his entries are regular; and if they could be impeached for want of power in the Court, the question can properly be reviewed by an appeal from the judgment, which has been regularly entered.

For these additional reasons therefore, as well as for what seem to me the conclusive reasons assigned by the Chief Justice, the order appealed from should be affirmed.

The order was affirmed, all the judges concurring.  