People ex rel. Jennys v. Brennan

what preceded and followed it in the United States District Court. But, notwithstanding the adjudication of that court that the money in controversy should be paid by the sheriff to the assignee in bankruptcy, and the actual payment following it, the Special Term of this court held, in the proceedings instituted by the attachment, that the payment was unlawful, and that the sheriff must pay the money again to the relator. The effect of the decision is, that the proceedings in the United States District Court, and payment under and pursuant to them, constituted no proper answer to the relator’s demand for the same money. Whether that conclusion was correct or not, is the point now remaining to be considered in the disposition of the present appeal. Under the bankrupt law, there can be no doubt that the proper mode of determining the conflicting claims made for the money collected upon the execution, was by a bill in equity, either by the assignee or the sheriff. That point has been definitely settled by the decisions made in Smith v. Mason^[12] and Marshall v. Know.^[6] But in both those cases, the proceedings by petition were not only opposed by the parties proceeded against, but they were reviewed in the manner which the bankrupt law provided for that purpose. The present case is distinguishable from them in both respects, for the relator first consented to the reference of the claims under the petition of the assignee, and, after a determination against her, denies its effect only in a collateral proceeding.

The proofs produced upon the hearing under the attachment, show that her counsel consented to the reference in order to avoid the necessity of the more formal action by bill of complaint, and that consent was in no manner attempted to be withdrawn, until it had been acted upon and the reference ordered. After that, and after the objection was made before the register that the proceeding should have been by bill, the relator proceeded with the hearing, and gave, as well as contested, evidence which was pertinent to the settlement of the controversy embodied in the order. The objection was renewed in the brief presented to the United States Court on the final hearing, but, in the disposition then made of the case, it must have been overruled.

That the United States District Court had jurisdiction over the controversy existing between the relator and the assignee, is settled

by the authorities already cited; and if her consent was sufficient to subject her to that jurisdiction by the proceedings commenced by the' petition, then the objection afterward made did not have the effect of depriving the court of the authority which she had-voluntarily given it over her person. It had the power of subjecting her to its jurisdiction for the settlement of the dispute existing between her and its officer; but not by means of the summary proceeding taken by him, unless she elected to consent to it. But, as she did consent, and the reference to take the proof was made upon that basis, by that act she surrendered herself to the jurisdiction of that court for the purposes comprehended in the petition. She was irregularly brought before it, but waived the irregularity by the assent to the proceedings, which her counsel gave in her behalf. That gave it jurisdiction over her person ; and, as the subject-matter was within its lawful authority, that was sufficient to enable the District Court to proceed with the hearing and decision of the dispute concerning the money in the sheriff’s hands. After jurisdiction was obtained in this manner over the relator, the court had the right to retain it until all the purposes of the proceedings were fully attained,^[12] and, even though it might have been irregular, it was still binding and effectual as long as it was neither reversed nor set aside. This was held of a similar proceeding, in the case of People v. Norton,^[6] where a trustee had been removed by petition, instead of by bill of complaint. By way of answering the objection, it was replied in the opinion delivered, and concurred in by all the members of the court, that “ the Court of Chancery had general jurisdiction of all cases of trust, and the power by its general authority, independent of any statute, to displace a trustee on good cause shown, and to substitute another in his stead. It is said that this must, in all cases, according to the course and practice of that court, be done by bill and not upon petition. But a departure from the usual practice of the court, in doing an act which the court has authority to do, does not render the act void. It may be irregular or erroneous, and, upon a direct proceeding, may be set aside or reversed; but its validity cannot be questioned in a collateral action.” ' This principle is directly applicable to this case, and the decision is a "decisive authority

against the position taken in the relator’s behalf; and it is further fortified and maintained by the circumstance that consent has generally been held sufficient to confer jurisdiction over the person giving it. To the same effect, also, is the case of Fisher v. Hepburn.^[12] And it was assumed to be the case in both the authorities cited from the United States Supreme Court Reports. For that court held, that “ strangers to the proceedings in bankruptcy, not served with process, and who have not voluntarily appeared and become parties to such litigations, cannot be compelled to come into court under a petition for a rule to show cause.”^[6] A voluntary appearance was evidently considered to be sufficient for all the purposes of jurisdiction, even over strangers to the proceeding. The same thing was decided in Ex parte Squires v. Broome C. P.,^[7] where the defendant was served with a declaration out of the county, which gave the court no jurisdiction over his person; and it was held- that he waived the objection, by procuring an order in the cause that the plaintiff should file security for costs.

Objection to the jurisdiction over the person of a party may be expressly waived, and the same thing may be done by implication, by means of any act indicating it to be the design of the person entitled to make it, not to insist upon it.^[8] And in Clapp v. Graves,^[9] the principle was applied to the support of a judgment recovered before a justice, where the defendant, a non-resident, was proceeded against by a long instead of a short summons. As he appeared in the action, and took no objection to the process, the jurisdiction over him was held to be complete, and that, too, where the statute provided that it could only be acquired by the service of a short summons. Other cases of a similar nature will be found in 2 Wait’s Law and Practice (1st ed.), 17, 19. Neither the case of the Buffalo & State Line R. R. Co. v. Supervisors,^[10] nor that of Bloom v. Bwrdick,^[11] is opposed to this principle. In the latter, the real property of infants had been sold upon proceedings in a Surrogate’s Court, without the appointment of a guardian for

them. Being infants, they could not waive the defect, and, for that reason, the court had no jurisdiction over them. According to the authorities applicable to the present controversy, the relator was concluded by the proceedings instituted with her consent in the United States District Court, for the determination of the dispute concerning the title to the money in the sheriff’s hands.^[12] The determination there made, fully justified him in paying it over to the assignee, and that was sufficient, under the circumstances properly appearing on the hearing, and specially allowed by the order directing th'e attachment, to exonerate him from the ordinary consequences which vyould otherwise have resulted from his disobedience of the order of the 10th of May, 1872. By the proceedings taken upon the relator’s consent, she precluded herself from the right to complain of such disobedience. The order appealed from should be reversed, with ten dollars costs, besides disbursements, and the motion made denied, with ten dollars costs.

Davis, P. J., and Bbadt, J., concurred.

Ordered accordingly.