
    Albert Gilbert, Jr., et al., App’lts, v. Warren D. York, et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 11, 1888.)
    
    County court—Pleading—Jurisdiction—Complaint must allege residence OP DEPENDANT—OMISSION, GROUND OP DEMURRER—CODE OlV. ‘ Pro., § 340.
    In an action brought in a county court for the recovery of a money judgment, the complaint should aver the jurisdictional fact that the defendant, at the time of the commencement of the action, is a resident of the county in which it is brought. Where there is no such averment in the complaint, the objection is properly taken by demurrer. Following, F, ces v. Ford (6 N. Y., 176).
    
      John Woodward, for app’lts; John G. Record, for resp’ts.
    
      
       Affirming 5 N. Y. State Rep., 278.
    
   Andrews, J.

The case of Frees v. Ford (6 N. Y., 176) is a decisive authority upon the question presented in this record, unless the rules of pleading prescribed in the Code of Civil Procedure have changed the rule declared in that case, so that it is now unnecessary in an action brought in a county court for the recovery of a money judgment, that the complaint should aver the jurisdictional fact that the defendant, at the time of the commencement of the action, is a resident of the county in which it is brought.

The case of Frees v. Ford was commenced after the adoption of the constitution of 1846, which ordained that the county courts in the several counties, except New York, “shall have such jurisdiction in cases arising in justices’’ courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction, except in such special cases.”

By the 30th section of the judiciary; act of 1847, passed in assumed execution of this constitutional authority, jurisdiction was conferred on the county courts of actions of debt, assumpsit and covenant, where the debt or damages claimed shall not exceed $2,000, “when all of the defendants at the time of commencing the action shall reside in the county in which such court is held. ”

The action of Frees v. Ford was commenced after the passage of the judiciary act, but before the enactment of the Code of 1848. The complaint in that case did not aver that the defendant resided in the county, and the defend-' ant interposed a plea to the jurisdiction, and the plaintiff demurred to the plea, the intention of the parties being to present in this form for the determination of the court, the question of the constitutionality of the 30th section of the judiciary act, the precise point being whether an act of the-, legislature conferring jurisdiction on the county courts in certain classes of common law actions, limited only in respect of the amount claimed, and the residence of the defendant, made the actions specified, special cases within the constitution of 1846.

• The constitutionality of the act was affirmed by the county court and at general term, but when the case-came to this court, the judges declined to pass upon the constitutional question, but applying the rule that on demurrer, judgment must go against the party who committed the first fault in pleading reversed the judgment of the courts below, on the ground that assuming the constitutionality of the thirtieth section of the judiciary act, nevertheless, the complaint was fatally defective because it did not aver that the defendant resided in the county at the commencement of the action. The court in assigning the reasons for its judgment said, “ the county court is not a court of general jurisdiction, as was the old court of common pleas; on the contrary, it is a new court with a limited statutory jurisdiction. To all such courts, the rule universally applies, that their jurisdiction must appear on the record.” In this way the court avoided deciding in that case the constitutional question raised, but it was afterwards decided in Kundolf v. Thalheimer, 12 N. Y., 593.

The rule declared in Frees v. Ford, that the residence of the defendant in the county is a jurisdictional fact which must be averred in a complaint in an action in the county -court, brought under the judiciary act of 1847, would seem to_ be equally applicable to an action brought since the Constitutional Amendment of 1873, and the enactment of section 340 of the Code of Civil Procedure, defining the juristion of county courts.

The amendment of 1873, declares that the county courts shall have original jurisdiction in all cases where the defendants reside in the county, in which the damage .claimed shall not exceed one thousand dollars. This language, and that of section 340 of the Code, so far as relevant to-the present inquiry is substantially the same as the thirtieth section of the Judiciary Act of 1847, and if an averment of residence of the defendant in the county was essential under the act of 1847, the mere fact that the jurisdiction of county courts is now defined by the constitution, but in language substantially identical with the language of that net, would not seem to furnish a sufficient reason for changing the rule of pleading.

But the counsel for the plaintiff relies upon sections 481, 488 and 498 of the Code of Civil Procedure, and especially upon section 488, defining the causes of demurrer, in support of his contention that in an action in the county court an averment in the complaint of the residence of the defendant within the jurisdiction, is no longer necessary.

Section 481 is the general section, applicable to both the supreme and the county court, specifying what a complaint must contain, and there is no specification which requires any averment as to the residence of the parties. But the prescription in this section of matters which must be averred in the complaint, is not in terms exclusive.

Section 488 authorizes a defendant to demur to a complaint where one or more of eight objections specified "appear upon the face thereof,” and among these objections are objections to the jurisdiction.

Section 498 authorizes the objections specified in section 488, to be taken by answer, where they do not appear on the face of the complaint.

It is insisted that it does not appear on the face of the complaint that the defendant at the commencement of the action was not a resident of the county in which the action was brought, and that this jurisdictional fact may exist although not stated therein, and consequently that the absence of jurisdiction not being disclosed on the face of the pleading, the complaint is not demurrable under section 488, and that the case is one where the objection should be taken by answer under section 498.

This argument is not without plausibility or force. But when we recur to the principle upon which the validity of judgments of courts of limited or inferior jurisdiction is determined, we think it may fairly be held that the sections of the Code referred to do not affect the rule declared in Frees v. Ford.

In Peacock v. Bell (1 Saund., 73), it is said that “nothing shall be intended to be without the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.”

This statement of the rule has been frequently approved. The rule has been applied in many cases in the supreme court of the United States to test the validity of judgments rendered in the circuit courts of the United States. The jurisdiction of those courts of suits between individuals is made by the act of congress of 1789, to depend upon the alienage of one of the parties, or upon the fact that the plaintiff is a citizen of the state where the suit is brought, and the defendant a citizen of another state. The circuit courts of the United States, although not inferior courts, are courts of limited jurisdiction.

It has been uniformly held that the record of a judgment of a circuit court must affirmatively show the existence of the jurisdictional fact, and that unless the contrary appears by the. record, the presumption is that the case was without its jurisdiction, and it is further held that the question may be raised for the first time on appeal or error, and if, on examination, it is found that the record is silent as to the jurisdictional fact, the judgment will be reversed. Stanley v. Pres't, etc., 4 Dallas, 8; Robertson v. Cease, 97 U. S., 646; Grace v. Ins. Co., 109 id., 283; Continental Ins. Co. v. Rhoads, 119 id., 237.

It was upon this principle that the case of Frees v. Ford was decided. We are not aware of any case in this state which controverts the general rule that in a direct proceeding to review a judgment of a court of limited and inferior jurisdiction the record must show affirmatively that the court had jurisdiction, or else the judgment will be set aside.

Frees v. Ford is an authority that the presumption that the inferior court is without jurisdiction when the jurisdictional facts are not alleged in the complaint, prevails on demurrer.

What courts are to be regarded as courts of limited jurisdiction so that their proceedings shall be affected by the presumption stated, is a question not always free from difficulty (see People v. Bradner, 107 N. Y., 1; 13 N. Y. State Rep., 902), but that county courts, as now organized, are of that description, is a conclusion which seems to follow from the case of Frees v. Ford. Construing the complaint in this action in view of the legal presumption, it follows that there being no allegation therein as to the residence of the defendant, there is not simply an absence of any information in the complaint, one way or the other, as to the fact, but an affirmative presumption from its silence upon the point, that the defendant was not a resident of the county when the action was commenced, and therefore the fact does appear on the face of the complaint that the county court did not acquire jurisdiction, an objection which was properly taken by demurrer.

_ The argument derived from the rules of pleading established by the Code does not satisfy us that the legislature intended to abrogate the presumption to which we have adverted, nor do we think that the fact that the jurisdiction of county courts of common law actions like the present one is now prescribed in the constitution itself, and is not dependent upon the statute, takes the case out of its operation. They are still courts of limited jurisdiction within the case of Frees v. Ford.

These views lead to an affirmance of the judgment.

All concur.  