Cleaveland v. Hatch

Headnote

County Court — an allegation of the complaint in an action in it, as to the residence ■ of a defendant, not denied in his answer, must he taken as true for all purposes — he cannot move to vacate a judgment entered therein on the ground, that he was a nonresident of the county.

Appeal from an order of the Cattaraugus County Court denying a motion on the part of the defendant to vacate' the judgment herein and to dismiss the action for want of jurisdiction.

The court at General Term said : “The ground of the motion was that at the time of the commencement of the action Willard Hatch, one of the defendants, was not a resident of the county of Cattaraugus, but resided in the county of Allegany. The pleadings in the case furnish a sufficient answer to the motion. The complaint alleged that both of the defendants were residents of the county of Cattaraugus, and each defendant appeared and answered and did not deny the averment. The fact of residence having thus been admitted of record, must be taken as true for all purposes of the action. (Code of Civil Pro., § 522.) Every fact essential to the jurisdiction is material to the issue, and when controverted it must of necessity be determined by the court upon proof like any other question of fact. (Burckle v. Eckhart, 3 N. Y., 132 , per Gardner, J., p. 137.) Whether the fact is put in issue or is alleged and admitted on the record, in either case the adjudication is conclusive. In Davis v. Packard ( 6 Wend., 327 ) Walworth, Oh., said, speaking of courts of limited jurisdiction: “ Where the court has jurisdiction over the subject matter of the suit and facts are stated in the proceedings sufficient to give it jurisdiction as to the parties, if the defendant appears and confesses those facts, or tacitly admits them by pleading to the merits, he is precluded and cannot afterwards assign for error the want of jurisdiction.” The Chancellor cited several cases in support of this position. The case of Davis v. Packard was reversed by the Supreme Court of the United States ( 7 Pet., 276 ), but the principle stated by the Chancellor was not questioned but was held inapplicable to that case.

The order appealed from should be affirmed, with ten dollars •costs and disbursements.”