
    FAIRBANKS a. CORLIES.
    
      New York Common Pleas;
    
    
      General Term,
    
    
      December, 1854.
    Trial nr District Court.—Jueisdiction of Justice.—Bor-BESIDERCE OF PASTIES.
    The refusal of the justice of a district court to suspend a trial after witnesses have been examined, for the purpose of enabling one of plaintiff’s witnesses to leave-the court to search for papers mentioned in a subpoena duces tecum, served on’ such witness by the plaintiff shortly before the witness was sworn, is no ground, for reversing the judgment.
    Where the evidence is conflicting, the finding of the justice will be deemed conclusive upon the facts.
    Where a plaintiff voluntarily brings his suit before the justice of a district in which-neither the plaintiff nor defendant resides, and goes to trial upon the merits, and recovers a judgment against the defendant, though for less than the plaintiff’s, demand, (it in no wise appearing on the trial that the parties do not reside within, such district,) the plaintiff cannot by appeal from such judgment require the. appellate court, to reverse the judgment upon the ground that the justice had no-jurisdiction by reason of such non-residence.
    It seems that a judgment so procured is not as to the plaintiff, procured contrary to the meaning and intent of the statute requiring suits in the justices’ courts to be brought in the district where one of the parties resides; and if otherwise the plaintiff is so far precluded by his own voluntary acts that he cannot have a reversal on appeal.
    Appeal from the judgment of a district court.
    The suit was brought to recover for services rendered and disbursements made in an examination of title. One Judah,, having been examined by defence to show the insufficiency-of the examination made by plaintiff, stated upon his cross-examination, that a subpoena duces tecum, requiring him to produce the abstract of title prepared by the plaintiff, was served upon him after he entered court, and while he took the stand as a witness,—but that he could not produce the abstract for want of notice previous to the moment of giving his testimony.
    The plaintiff requested the justice to suspend the trial to enable the witness to procure the paper. This the justice refused to do.
    Evidence on both sides having been put in, the justice rendered judgment for the plaintiff for the amount of his disbursements only. The plaintiff appealed upon several grounds, among others, alleging that the justice had no jurisdiction ; and upon the appeal, showed by affidavit annexed to his points upon appeal, that .neither party resided in either of the wards within the jurisdiction of the justice.
    Plaintiff in person.
    An assistant justice elected under the act of 1848, (laws of 1848, ch. 153), has no jurisdiction where the defendant and one of the plaintiffs reside in the city, and neither of the parties reside in a ward within the justice’s district. (Cornell a. Smith, 2 Sand. S. C. R., 290). Appearing and pleading without objection,' do not waive the defect nor confer jurisdiction, the statute being peremptory that the justice shall dismiss the causes. (Ibid.)
    
    
      J. E. Devebm, for respondent.
    It does not appear by the return, where the parties resided. Whether of not the justice had jurisdiction is a question of law. An’ affidavit can only be used to show facts not in the return, can only be used when. “ the appeal is founded on an error vnfact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice.” (Code, § 366). The point raised on the affidavit of appellant is a point of law, not of fact, and therefore not within this section.
    Even if the court will permit an affidavit to be used in its discretion, favor should not be shown to the appellant in a case like the present.
   Woodruff, J.

The various grounds of appeal which relate to the admission or rejection of evidence do not appear by the return to have any foundation-in the proceedings had on the trial. If any objectionable testimony was received, it was received without objection, and it is too late to make such ■objection for the first time on appeal. If the return is imperfect in this respect, the appellant should have caused it to be •corrected and the omissions supplied.

As to the evidence said to have been rejected, I find ¡nothing in the return showing any such rejection.

As to the claim of the appellant that the justice should lave suspended the trial to enable the plaintiff to compel one of his witnesses to obey a subpoena duces tecum, which was served after the trial commenced, it is at least doubtful whether the justice had any authority after the examination of witnesses had commenced, to suspend the trial without the consent of both parties, except for the simple cause that there was not time to conclude it on the day.

But if he had authority, it was a matter of discretion with which we could not interfere, unless possibly in a case of gross injustice—and finally it was owing to the plaintiff’s loches that his subposna was not sooner served, and the justice was quite right in refusing the application.

Upon the merits there is no sufficient reason for a renewal. The appellant insists that the finding of the justice is against the weight of the evidence. The claim of the plaintiff was for an amount due him for searching the title to certain real estate. The evidence was conflicting in regard to the defendant’s agreement. Being examined by the plaintiff on his own behalf, the defendant testified in-substance that she employed the plaintiff to search the title, and procure a loan for her, upon his agreeing that he would do so for $25, and disbursements not exceeding $5; and that so far from performing this agreement on his part, he only placed her in communicatian with another party to whom she was required in ordér to procure the money, to pay $89 for searching the title and for the disbursements connected therewith, besides a further payment of commissions to a broker through whom the loan was procured.

Although her payment of a large amount was not in itself alone a reason for not performing her agreement with the plaintiff, if he on on his part performed his agreement, yet the evidence in this respect warranted a finding that the plaintiff did not perform what he undertook to do. It appeared, however, that the defendant did afterwards consent to pay $65 in addition to the $25 first stipulated, but it also appeared that this was not sufficient to effect the object. On the contrary, before she could obtain the money she was required to pay, and did pay, over $100. The .evidence I think warranted the justice in holding that the plaintiff in the first instance undertook that she should have the money at an expense of not exceeding $30; and that the subsequent modification did not vary the agreement further than to extend the amount to $90; and even this modification, the defendant testified, was wrung from her by duress of her papers.

In this view 'we cannot say that a finding that the plaintiff did not perform his contract was against evidence,—indeed it is left in doubt by the evidence whether in fact the plaintiff ©ver did make any search, of the title. He certainly did not make one which was effectual for the purpose contemplated by both of the parties. By allowing to him the sums paid out for the certificates procured and furnished by him, the justice has done all that consistently with his finding in other respects he could do.

As to the plaintiff’s claim for drawing papers, it must suffice to say, that the plaintiff did not declare for any such services.

The remaining inquiry is, whether the plaintiff can require a reversal of the judgment rendered in his own favor, (though for a sum less than that to which he conceives himself entitled,) upon the ground that the plaintiff and defendant both resided without the judicial district, and that the justice had therefore no jurisdiction.

It is provided by section 103 of the act relating (among other subjects), to these courts, (2 Rev. Laws, 1813), that every action to be commenced before any of the assistant justices, shall be commenced either in the ward in which the plaintiff has resided for at least one month, or in the ward in which the defendant resides; and every such justice is directed and required to dismiss every action brought before him contrary to the provisions of this section, with costs of suit, to be paid by the plaintiff\ in the same manner as if he were non-suited on the merits ; and every judgment that may be obtained or procured, contrary to the true i/ntemt and meaning of this section, shall be utterly void.

"Under this provision of the act, the present case presents this question:

Can a plaintiff, who has voluntarily selected his tribunal and submitted his cause to adjudication, and obtained a judgment in his own favor, appeal therefrom and require a reversal on the ground that his suit was brought by himself out of the ward and district in which the parties resided ?

First. Nothing appeared on the trial or in any of the proceedings before the justice, showing that the parties did not reside within his district; and as both appeared and went to trial upon the merits without objection, it was not the duty of the justice to volunteer any inquiry into the residence of the parties.

Second. It is provided by section 89 of the same act, “ that where any parties shall agree to enter an action before any assistant justice without process, such assistant justice shall proceed to trial in the same manner as if a summons or warrant had issued.” It would be doing no great violence to the statute, if we should hold that a plaintiff, by voluntarily proceeding before the justice, did, in legal effect, submit by his own voluntary agreement to the jurisdiction, so that as to such plaintiff the judgment was not obtained “ contrary to the true intent and meaning of the section above referred to.”

TJw/rd. The section referred to, manifestly contemplates a compulsory proceeding, and was inserted for the protection of the party proceeded against, and it is not unreasonable to say, that so far as the plaintiff is affected by the judgment procured by himself, it is not according to “ the true intent and meaning of the section,” that he should, after judgment, allege his own wrong in avoidance thereof.

Fourth. It may be plausibly urged, that upon a reading of the whole section together, the legislature only intended that when it appeared on the trial that the action was brought in a district in which neither party resided, it should be the duty of the justice to dismiss the action, and that if he did not do so, the judgment he pronounced should be void. The legislature did certainly intend, (as they have distinctly expressed), that when the action failed for this cause, that it should be with costs of suit to be paid by the plcmitijf, and not that judgment being pronounced in his favor, he should avoid it and leave the defendant to pay costs incurred in the defence. Nor in my judgment did they intend, that after judgment in the plaintiff’s favor, he might collect the amount, and then treat the judgment as void. Where no such defect of jurisdiction appears on the' trial, it is by no means clear that the plaintiff should be permitted to set up matter, not appearing on the record, and arising wholly of his own wrong, and allege it as an error. A plaintiff would not be permitted to assign for error in a judgment in his own favor, that the defendant, was an infant, appearing by attorney instead of guardian. In such case, it is true the parallel is not exact, but the analogy is not remote.

Fifth. I apprehend the general rule cannot be controverted that it is only the party who is aggrieved by the judgment who • can reverse it. The former statute relating to certAora/ri to justice’s courts, authorized either party thinkmg himself aggrieved to bring the writ, but it did not follow therefrom that the appellate court must reverse if they found that he had sustained no wrong. And so it was held in Hughes v. Stickney (23 Wend., 280). This judgment being in favor of the appellant, and the proceedings being in other respects correct, the plaintiff is not aggrieved by it. The error, if any, in respect to jurisdiction aggrieves the defendant, if any one. He might reverse it if void. (Striker v. Mott, 6 Wend., 465). By the Code the mode in which such judgments may be reviewed is altered, but the principles by which such review shall be governed in this respect are not changed thereby.

It is stated by the counsel for the respondent in his argument, that the judgment has been paid. This fact, if relied upon, should have been laid before the court in some authentic form. Had this been done, it would have presented a serious question, whether the limitations upon the prosecution of writs of error in favor of the party recovering the judgment should furnish a principle for our guidance, (2 Rev. Stat., 592, § 3), and whether section 369 of the Code contemplates restitution in such a case.

Sixth. It would be no hardship to the plaintiff, nor any violence to the law, to hold that when the plaintiff has thus voluntarily submitted himself to the jurisdiction of the justice and had a trial upon the merits, he is precluded from proving non-residence as a ground of reversal, and 'that his acts should be taken as a conclusive admission by him that the residence of the parties was such as in this respect to entitle the justice to proceed to judgment.

Upon the various points in relation to this question whether ■the plaintiff is bound by the judgment, I have not intended to express an opinion. It is not necessary that I should do so. Hor do I intend to dissent at this time from the decision of the Superior Court in Cornell v. Smith (2 Sand., 290). It may be that a defendant, though he appears, pleads, and goes to trial without objection, may yet seek a reversal, alleging that he is aggrieved by a judgment against him.

But I do intend to say, for many of the reasons above suggested, that we are not called upon to reverse this judgment, and it is to my mind sufficient that no error was committed on the trial by which the plaintiff has been aggrieved, and rendering the judgment in his favor was no grievance to him. If ■the judgment is utterly void, as he claims it to be, and his acts do not preclude him from alleging and proving the matters which invalidate it, he is in no wise prejudiced by it. It does not even stand in the way of another suit for the same ■cause of action.

And if the judgment is not void as to him, then it ought ■not to be reversed, but he ought on every ground to be held bound thereby.

And let it be observed that it does not follow from our refusal to reverse, that the judgment is not void. In relation to such a judgment, the prevailing party therein stands in a very different situation from him against whom it is rendered. He is entitled to a reversal because such a judgment may be enforced against his property, and the officer levying an execution thereon would be protected. Ho thing on the face of the process or even in the judgment itself would indicate that it is not in all respects valid, and upon this ground it was that the court in Striker- v. Mott above cited ordered a reversal. But the prevailing party, if the judgment is void, loses nothing and can lose nothing by it; and nothing has occurred or can occur to his prejudice by reason thereof. In a case above referred to, Helson, J., says, (when he deemed the judgment erroneous upon other grounds), “the judgment was clearly erroneous, and the plaintiff (defendant in certiorari) could have reversed it, as he was aggrieved, but I am not aware of any rule or practice that will permit the defendant (plaintiff in certiorari) to right him. I think he should continue to suffer unless he choses to move himself in the matter.” So here I think it is the defendant who alone can be said to be aggrieved if any one, and it is right that she should suffer if she do not complain of the wrong. The plaintiff has no occasion to ask of us that the defendant be relieved.

It would be hard indeed upon the defendant, if the plaintiff could be permitted to bring his suit, choosing his jurisdiction, going to trial and recovering a judgment, and then come here by appeal and have a reversal with costs, and thus leave the defendant, who is in no wrong in respect to this question, not only to pay her own costs, but also to pay costs in this court.

In my opinion the judgment should be affirmed. 
      
       In Pollock a. Ehle, decided at the Common Pleas, Dec. Gen. Term, 1854, it was held that a justice ought not to adjourn a cause after the plaintiff rests, to allow defendant to procure evidence which he might have obtained prior to the commencement of the trial.
     