Page images
PDF
EPUB

Special Term.

[Nov.

server was told by a third person who was present at the service that the person served was defendant. Held, that the identification was insufficient.

2. DIVORCE-ALLOWANCE OF ALIMONY.

In an action for divorce the only evidence of defendant's circumstances was the opinion of the officer who served the summons that he must earn $25 or $30 per week. He was not sure, however, that defendant held a position, but merely said that he was apparently employed as bookkeeper or cashier for a company named. Held, no evidence on which to base the amount of alimony to be allowed.

Action by Bettie K. Randall against Leon G. Randall. Proof of defendant's default held insufficient, and plaintiff given opportunity to present additional evidence.

D. M. Porter, for plaintiff.

GILDERSLEEVE, J. The action is for an absolute divorce, instituted by the wife against the husband. Alimony is asked for. The defendant has not appeared in the action, but has suffered his default to be taken. The only evidence of proper service of

IDENTIFICATION OF DEFENDANT ON SERVICE OF SUMMONS IN MATRIMONIAL
ACTIONS,-continued.

Where the brother of the plaintiff served the summons in an action for absolute divorce, upon the defendant wife, although he swears in his affidavit of service that he is the brother of the plaintiff and knows the defendant very well, because of the close relationship to the plaintiff, he should have been called as a witness and examined on the subject.

Fawcett v. Fawcett, 29 Misc. 673; 95 St. Rep. 108; 61 Supp. 108.

In the affidavit of service of summons in a divorce action the person serving swore that he had known the defendant for about a year and defendant admitted that he was the husband of the plaintiff. Identification of the defendant probably sufficient.

Fowler v. Fowler, 29 Misc. 670; 95 St. Rep. 109; 61 Supp. 109.

Careful search fails to reveal further cases on the question of identification at the time of service of summons in matrimonial actions.

Where the defendant in an action for an absolute divorce has been identified by accusing witnesses only through her photograph, the evidence should be clear and conclusive that the exhibit is her photograph.

Rowe v. Rowe, 24 Misc. 113; 86 St. Rep. 418; 52 Supp. 418.

[ocr errors]

1899]

the summons is that the server identified the person served from a photograph of the defendant, and that the person served admitted his name to be Leon G. Randall, and also that the server was told by a man named Aberg, who appears to have been present at the time of service, that the person served was the defendant herein. Aberg himself has not been called as a witness. I am not altogether satisfied with this identification of the defendant. Then, again, there is no proof offered of the defendant's circumstances upon which to base the amount of alimony. The server, who does not appear in any way qualified to give an opinion, thinks the defendant must earn $25 or $30 a week "as bookkeeper or cashier for the N. Y. Powder Company." But he is not even sure that defendant holds any such position, and merely says that defendant was "apparently" employed in some such capacity. Further evidence should be presented to satisfy the court of the proper service of the summons on the defendant, and, if alimony is to be insisted upon, further testimony should be produced, throwing light on the financial status of the defendant. The plaintiff may have an opportunity to present additional proof before me, in part 3, at 10:30 A. M. on November 17th inst

Randall v. Randall.

Appellate Division.

BELDEN v. WILKINSON.

[44 App. Div. 420; 94 St. Rep. 1083; 60 Supp. 1083.]

! Supreme Court, Appellate Division, First Department. November 24, 1899.)

[Nov.

1. COURTS

JURISDICTION-PLEADING.

An objection that the court has no jurisdiction of a defendant's person, because of the want of a proper service of summons, can be taken advantage of only by motion, and not by demurrer.

2. SAME-NONRESIDENT TRUSTEES.

The supreme court has jurisdiction of an action by a resident of another state against trustees under a will residing in England, where service of summons can be had upon them, to recover the price of land in another state purchased by their testator in his lifetime.

[blocks in formation]

a. Scope of note-References.

Cases involving the line of demarkation between the jurisdiction of the Federal and State Courts are not included herein, such as those involving patents, national banks, admiralty questions, copyrights, etc., nor are the limitations on the jurisdiction of local and inferior courts treated in this note; nor are the cases involving criminal jurisdiction and foreign corpo

rations.

For note on jurisdiction of nonresidents including Foreign Corporations, see 4 Ann. Cas. 243.

For note on Jurisdiction of Inferior Courts Under Constitution of 394, see 6 Ann. Cas. 400.

b. In General-Consent-Waiver-Costs.

In Hunt v. Hunt, 72 N. Y. 217, Folger, J., discusses the question of juris

[blocks in formation]

Appeal from special term, New York county.

Action by Horace Belden against George Wilkinson and another, as trustees under the will of Frank Wilkinson, deceased, to recover the price of land. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Argued before Van Brunt, P. J., and BARREtt, Rumsey, PATTERSON, and O'BRIEN, JJ.

Henry T. Fay, for appellant.

James Dunne, for respondents.

RUMSEY, J. The plaintiff is a resident of the state of Connecticut. The defendants, who are sued as trustees under the

JURISDICTION OF SUBJECT-MATTER,-continued.

diction of subject-matter generally and especially as relating to divorce (pp. 227-230.) His conclusion is "that jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action."

The same judge discusses the same subject again in Lange v. Benedict, 73 N. Y. 12, an action against a judge for imposing a sentence upon the plaintiff in excess of his jurisdiction. Jurisdiction of the subject-matter "is not confined within the particular facts, which must be shown, before a court or a judge, to make out a specific and immediate cause of action; it is as extensive as the general or abstract question, which falls within the power of the tribunal or officer to act concerning. It is the general abstract thing which is the subject-matter. The power to inquire and adjudge whether the facts of each particular case make that case a part or an instance of that general thing—that power is jurisdiction of the subject-matter." (pp. 27-28.)

[ocr errors]

So too, Sweet v. Merry, 109 N. Y. 83; 16 N. E. 63.

Smith v. Central Trust Co. 154 N. Y. 333; 48 N. E. 553.
O'Donoghue v. Boies, 159 N. Y. 87, 108; 53 N. E. 537, 543.

"The question is properly one of jurisdiction, only when a judgment asserting the power of the court would be void and assailable collaterally in every other court."

Bangs v. Duckinfield, 18 N. Y. 592.

VII. N. Y. A. C.

4

Appellate Division.

last will and testament of Frank Wilkinson, deceased, are residents of England, of which country Wilkinson, their testator, was also a resident. The complaint alleges that the plaintiff agreed to sell to Wilkinson, and he agreed to buy, a piece of land in the state of Connecticut, of which Wilkinson took possession, and that a portion of the purchase price was still unpaid. It alleges the death of Wilkinson; the appointment of the defendants as his executors and trustees, and that they, as trustees, are in possession of these premises; and contains further allegations, by which it is sought to make the defendants, as trustees, liable for the unpaid purchase money. The defendants demurred to the complaint, upon the ground that the court has no jurisdiction of the persons of the defendants, and no jurisdiction of the subject-matter of the action. At the special term the defendants had judgment upon the demurrer, from which this appeal is taken.

No question is raised as to the sufficiency of the allegations of

[Nov.

JURISDICTION OF SUBJECT-MATTER,-continued.

The existence of the jurisdiction of the court in cases of fraud, trust and contract is irrespective of the actual residence of the parties or the place where the controversy originated.

French v Maguire, 55 How. Pr. 471.

Cleveland v. Burrill, 25 Barb. 532.

This rule is subject to the qualification that the parties are natural per

sons.

Hann v. Barnegat & L. B. Imp. Co. 7 Civ. Pro. 223.

It is immaterial that both plaintiff and defendant are nonresidents of the state in an action on contract.

Smith v. Crocker, 14 App. Div. 245; 77 St. Rep. 427; 43 Supp. 427. Furbush v. Clarkson, 17 App. Div. 327; 79 St. Rep. 215; 45 Supp. 215.

The courts of another state cannot acquire jurisdiction of the subject-matter so as to grant a divorce by reason of the removal of one of the parties to that state for an offense committed by the defendant while both parties were domiciled in this state and the offense being one for which our law does not grant a divorce.

Holmes v. Holmes, 4 Lans. 388.

The courts of this state have no jurisdiction of an action based on a penal statute of another state.

« PreviousContinue »