William H. Snyder v. Samuel W. Goodrich, and others, 2 E.D. Smith 84

By the Court. Woodruff, J. The 103d

section of the act to reduce the laws relating to the city of New York into one act, (2 Rev. Laws, 379,) enacts unqualifiedly that every judgment in an action before one of the assistant justices, not prosecuted before the justice for the ward in which either plaintiff or defendant resides, at the time of the commencement of the action, shall be utterly void. It is shown, and not denied, in this case, that the plaintiff resided without the district of the justice who tried the cause, and that one defendant resided out of this state, and the other not within the said district.

This being the case, I can see no ground upon which the judgment can he sustained. The statute declares the judgment utterly void. It is not a question whether the justice had jurisdiction of the person. He had no jurisdiction to try the action or to render any judgment. The case of Robinson v. West, 1 Sandf. 19, has no application to this case. The statute relating to the Marine Court (2 Rev. L. 383, § 111) in express terms confers jurisdiction on that court upon a voluntary submission of the parties; but that

section does not apply to the Justices’ Courts—and the general rule, that a party may voluntarily appear and waive a defect in the jurisdiction, which relates to jurisdiction of the person only, cannot operate when the statute declares the judgment itself void'. This judgment must he reversed; and as we have, in such case, no discretion as to the costs, the reversal must be with costs. Judgment reversed.