Majority
Headnote
A judgment-debtor who appears pursuant to an order for his examination, which, hy its terms, is returnable before “ one of the Justices of the court,” instead of “ the Judge” who made it, and without objection to the form of the order, submits to an examination, and omits to appeal from a subsequent order appointing a receiver, waives all objection to the jurisdiction of the Judge to take the examination and make the appointment. In an action by such receiver against such debtor and his assignee, to set aside an assignment by the debtor to the latter as fraudulent, under a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, the defendant cannot avail himself of the objection that the appointment of the plaintiff appears by the complaint to be invalid.held, that the demurrer must be overruled; that the objection to the jurisdiction of the Judge, by whom the debtor was examined, and the order appointing a receiver made, ought to have been taken when the debtor appeared before him; that it was an objection which it was competent to the debtor to waive, and that, by his submitting to be examined and not appealing from the order appointing the receiver, it was effectually waived; that, if the original order for his appearance was a nullity, he was not bound to appear, nor, when he appeared, to be examined; that his appearance and submission to an examination must, therefore, be regarded as voluntary acts, and that a valid order for the appointment of a receiver might be founded upon a voluntary appearance and examination of a judgment-debtor, could not reasonably be doubted; that it is only when a Judge or court has no jurisdiction of the subject-matter of the proceeding or action in which an order is made or judgment rendered, that the order or judgment is wholly void. It is to such cases only, that the ma.xim applies, that consent cannot give jurisdiction. In all other cases, the objection to the exercise of jurisdiction may be waived, and it is waived whenever it is not urged in proper season—that is, when the exercise of the jurisdiction is first claimed. (Carthew, 124; Cro. Eliz. 562; 1 Strange, 177; 3 Sand. S. C. Rep. 605.) Here the general authority of the Judge to make the order appointing a receiver—in other words, his jurisdiction over the subject-matter of the order—was unquestionable.
Held, further, that if the objection to the jurisdiction were valid in itself, it would not be taken under a demurrer, specifying, as its only ground, that the complaint “ did not state facts sufficient to constitute a cause of action.” The ground that ought to have been specified to enable the court to listen to the objection was, that the plaintiff had not “ legal capacity to sue.” (Code, section 144, sub. 2.) The facts set forth in the complaint were plainly sufficient to constitute a cause of action; for if true, the assignment impeached was certainly void; nor had this been denied.
Note.—If it appeared by the complaint, that the order appointing the receiver was absolutely void, and not merely erroneous, might not the objection be taken under a demurrer, specifying, as its ground, that the complaint did not state facts Sufficient to constitute a cause of action? Might it not be said of such a complaint, that it did not show a cause of action in favor of the plaintiff, but the reverse ?
Is not the objection, that “ the plaintiff has not legal capacity to sue,” applicable to a complaint, which may show a cause of action in his favor, while it also shows the plaintiff to be under some disability, as non-age, or otherwise, which incapacitates him from suing in his own name ? (1 Whittaker’s Pr., 460.)—J. S. B.