Cromwell v. Cunningham — 4 Sarat. Ch. Sent. 384

Majority

p. 384

Cromwell v. Cunningham and others.

Dec. 3 1846.

Headnote

In a suit commenced before a vice-chancellor, who has no jurisdiction of the parties or of the subject matter, he has no authority to make an order permitting the plaintiff to amend his bill by adding proper parties residing within the jurisdiction. The court can make no order whatever, in a suit so situated.

This was a suit to foreclose a mortgage on lands situate in the county of Kings, in the second judicial circuit. None of the defendants resided in the first circuit. The solicitor,. not adverting to the act of May 13, 1846, (Laws of 1846, p. 468,) by which the county of Kings was set off to the second circuit, from the first circuit, (of which it had been a part for twenty years and upwards,) filed his bill in the first circuit, before the vice-chancellor. The suit was not defended, and it proceeded to a decree for foreclosure and sale in the usual course. The solicitor then for the first time learned his error, and ascertaining that persons proper to be made parties to the suit, resided in the first circuit, he moved to amend the bill, by adding them as parties defendants.

E. Norton, for the complainant.

J. Vanderbilt, contra,

The mortgaged premises are in the county of Kings, in the second judicial circuit, and all the defendants reside there. And it is a conceded point, that this court has no jurisdiction of the suit. It is nevertheless insisted by the complainant, that the difficulty may be remedied, by introducing a party as a defendant, who resides in the circuit, and he moves to amend his bill accordingly.

I am satisfied that this cannot be accomplished. Having no jurisdiction of the suit, the parties, or the subject matter, as the case now stands ; I have no right to make any order whatever in the suit. An order of mine, granting the complainant leave

p. 385

to amend, would be just as null and ineffectual, as are the orders and the decree already made in the cause, before the defect of jurisdiction was discovered.

The motion must be denied.