Majority
p. 409Jeremiah Crowley, Appellant, against The Royal Exchange Shipping Company (Limited), Respondent. (Decided April 3d, 1882.)
Headnote
Where the facts are undisputed and the law certain, the service of a summons and complaint may he vacated, on motion, for want of jurisdiction of the action, without compelling the defendant to raise the objection by demurrer or answer.Appeal from an order of this court vacating the service of a summons and complaint.
The action was brought against a foreign corporation, to recover damages for a personal injury to plaintiff, committed out of the state. Upon the hearing it appeared that the plaintiff was a non-resident of the state, and the motion to set aside the service of the summons and complaint was granted. From the order entered thereon the plaintiff appealed.
Edward E. McCarthy, for appellant.
Butler, Stillman & Hubbard, for respondents.
This court had no jurisdiction of the action. A late decision of the Supreme Court, general term
p. 410
of the first department, holds, that the objection, if the want of jurisdiction appear on the face of the complaint, should be taken by demurrer, otherwise by answer; and that the question of jurisdiction should not be tried upon affidavits (Johnson v. Adams Tobacco Co., 14 Hun, 89 ). Where a question of fact arises upon the motion raising an issue as to jurisdiction, the case cited is good authority for denying the application, and leaving the defendant to his answer ; but where the facts are undisputed and the law certain, the order asked for should be granted, as in Cumberland Coal Co. v. Sherman ( 8 Abb. Pr. 243 ), affirmed at general term in this district.
Beach, J., concurred.
Order affirmed, with $10 costs and disbursements.
Cases cited
- Cumberland Coal Co. v. Sherman 8 Abb. Pr. 243 p. 410