Swartwout v. Roddis — 5 Hill & Den. 118

Majority

p. 118

Swartwout and another v. Roddis.

Headnote

If a justice’s return on appeal contain matters not authorized or required by statute to be returned, they should be treated as mere unofficial statements, and there, fore disregarded. Per Nelson, Ch. J.

Accordingly, where a justice’s return to an appeal set forth, among other things, a copy of the warrant by which the suit was commenced, together with a copy of the- affidavit on which the warrant issued, and the common pleas ordered judgment of discontinuance at the trial on the ground of the insufficiency of the affidavit to confer jurisdiction; held, that no issue having been joined on this point before the justice, the judgment was erroneous and must be reversed.

In a plea to the jurisdiction of a justice, founded upon the privilege of the person, the want of proper process or return, or upon any other circumstance not relating to the cause of action, the facts exhibiting the alleged defect must be specially stated.

p. 119

Accordingly, where the defendant in a suit commenced by warrant, pleaded to the jurisdiction that “ the warrant was improperly issued,” without specifying the defect; held, that the plea was a nullity, and that the justice might disre. gard it.

If a defendant who is sued before a justice by warrant, join issue upon the merits and proceed to trial, he will not be permitted to object, on appeal, that the justice had no jurisdiction over his person by reason of a defect in the affidavit on which the warrant issued.

Error to the Rensselaer O. P. The suit originated in a justice’s court, and was commenced by warrant in favor of Swartwout & Baucus against Roddis. On the appearance of the parties before the justice, and after the plaintiffs had declared, the defendant interposed a plea in these words: “ The defendant pleads to the jurisdiction of the justice, and says that the said justice ought not to have or take further cognizance of the said action, because he says that the said warrant was improperly issued, and this he is ready to verify; wherefore he prays judgment &c. Defendant moves to be dismissed from custody on the ground that he has been improperly and illegally arrested.” The plea was overruled by the justice, whereupon the defendant pleaded the general issue.. After trial, judgment was rendered in favor of the plaintiff for $40, and the defendant appealed to the C. P. The justice’s return set forth copies of the warrant, the affidavit on which it was issued, and the pleadings, and contained a statement of the proceedings above detailed. After the jmy had been empanneled to try the appeal, the defendant’s counsel moved for judgment of discontinuance on the ground that the affidavit upon which the warrant issued was defective and that the justice had no jurisdiction. On ofFering to read the copies of the warrant and affidavit in support of the motion, the plaintiffs’ counsel objected, insisting, 1. That the warrant and affidavit formed no part of the justice’s return, and were not, therefore, properly before the court; and 2d. That they purported to be mere copies, and could not for that reason be read, even admitting that the originals might be regarded as a part of the return. The court overruled the objection, holding that the copies formed a part of the return, and were proper to be read in evidence; and the '

p. 120

plaintiffs’ counsel excepted. The court thereupon directed judgment Of discontinuance, and the plaintiffs sued out a Writ of error.

J. Pierson, for the plaintiffs in error.

A. K. Hadley, for the defendant in error.

The statute declares that the justice’s return shall state, 1. The title of the cause &c.; 2. The demand of the plaintiff, setting forth a copy of the declaration, if in writing; 3. The plea of the defendant &c.; 4. Any other proceedings of the parties upon which an issue was framed, and the issue] joined &c. (2 R. S. 187, § 194, 2d ed.) The process by which the suit was commenced, and the preliminary proceedings, are not mentioned as- any part of the return of which the court are to take judicial cognizance; and of course, if extraneous matters happen to be embodied in the return, the court are bound to disregard them. They go for nothing. The court below therefore erred in acting upon the matters embraced in the copies of the warrant and affidavit; and the judgment must, for that reason, be reversed.

But the court erred independently of this view of the case. The plea to the jurisdiction, as it is called, was a nullity on the face of it, and was therefore properly disregarded by the justice. It contained no fact that went to the jurisdiction; nor did it set forth any issuable matters. Whether regarded as a plea to the jurisdiction of the court, or in abatement of the suit, the special matter going to establish the one or the other conclusion should have been set forth, so that an issue could have been taken. Where the inferior tribunal has no jurisdiction of the cause of action upon which the suit is founded, it is sufficient to allege, generally, that the cause of action accrued out of the jurisdiction ; but where the plea is founded upon the privilege of the person, the want of proper process or return, or any other circumstances not relating to the subject matter of the suit* the facts

p. 121

must be specially stated. (See 1 Wentw. Pl. tit. Abatement; 3 Chitty's Pl. 895 et seq., Am. ed. of 1833; King v. Johnson, 6 East, 583.) In this case, the defendant’s plea should have set forth the alleged defect in the affidavit, so as to have enabled the plaintiff to take issue. It was not enough to allege generally, that the warrant was improperly issued. That was a question of law, depending upon the sufficiency of the affidavit.

The case then comes to this: No sufficient, nor indeed any objection was taken before the magistrate to the defect in issuing the process, and the defendant proceeded to an issue and trial upon the merits. This was regarded in Malone v. Clark ( 2 Hill, 657 ) as a sufficient waiver of the objection to confer jurisdiction over the person—the only ground of exception to the proceedings in this case.

Judgment reversed.