
    Willins vs. Wheeler.
    Where a defendant, in a justice’s court, is a non-resident of the county in which the justice resides, the justice will acquire no jurisdiction of his person hy the service of a summons issued by him returnable more than four days from the date.
    Such a fatal defect in jurisdiction as that, cannot be cured by a mere omission to take the objection. The defendant, upon such a service, 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.
    If the objection is not taken before the justice, the defendant may raise it in the" county court, on appeal.
    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.
    APPEAL from a judgment of the county court of Kings county. The appellant, a non-resident of Kings county, but a resident of the county of Wayne, was sued before a justice of the peace of Kings connty, by a long summons; and upon a return thereof personally served, judgment was taken against him by default. On the return day of the summons, the defendant appeared before the justice, and stated that he did not appear in the case, but that he merely appeared to say he was a non-resident of the county of Kings. On appeal to the county court, the defendant made an affidavit, in which he stated the fact of his non-residence in Kings county. The county court affirmed the judgment of the justice, and the defendant appealed.
    
      S. D. Lewis, for the appellant.
    
      G. R. Lindsay, jun. for the respondent.
   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 justice’s court in cases'where a warrant cannot be issued, but goes on to declare that if such a defendant be otherwise proceeded against “the justice shall have no jurisdiction of the cause.” In Harriott v. Van Cott, (5 Hill, 285,) it was held that a justice’s judgment against a non-resident of the county, sued by long summons, was void, and Would not justify a seizure of goods under execution, in a suit against the plaintiff for taking them. In Bowne v. Mellor, (6 Hill, 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 to 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 an 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 any proceeding under it, Jt is said that the defendant was 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 v. Harris, (4 Comst. 375, 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, thát 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 dictum not involved in the decision of the cause. Barnes v. 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. ¡No such question was before the court.

In the case at bar the objection was brought to the notice of the justice, as I have already stated; but 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 brought before the county court by the affidavit 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 errors in fact, upon affidavit, is a crude method of procedure, and strikes with surprise a legal mind accustomed to the former practice. It is 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 which the present practice permits, he is exempted even from the rule which Judge Gardiner states, if that were the law.

[Kings General Term,

February 14, 1859.

Lott, Emott and Brown, Justices.]

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 judgments of the county court of Kings county, and of the justice, must be reversed.  