D'Ivernois a. Leavitt. subject-matter of the action are all within its jurisdiction. The court had full power and authority to decide all the questions which could arise in the action, in some of the branches of the court. We are referred to the decision of the Court of Appeals in the case of Curtis and Others a. Leavitt. In that case the hearing was first at the general term, and it was held that the Code required a trial to be first had at a special term. I have not the opinion of the court in that case, and am therefore unable to say whether the court held the proceedings to be void for want of jurisdiction, or that the judgment should be set aside for want of compliance with the provisions of the Code. It must be conceded that the whole proceeding was irregular on the appeal to the general term; that point was so decided in the motion to strike this cause from the calendar at the last term: but I have not been able to adopt the conclusion that there was any such want of jurisdiction, as to render the whole proceeding before the general term coram non judice. The word jurisdiction is often used to express the want of control over proceedings in a cause on account of irregularity, and some confusion has been occasioned by not keeping in view the distinction which should always be observed between matters giving jurisdiction, or only as necessary to the regularity of . proceedings. Where a cause is removed by appeal or otherwise from one court to another, and the proceedings have been conducted in violation of law, then the court gains no legal control of the action, and of course no jurisdiction over it. But such a rule cannot, in my judgment, be applied to the proceedings in a cause in a court which has acquired full jurisdiction over the cause and the subject-matter, and the right to render judgment therein. In such a case any departure from the statutory provisions regulating its proceedings before judg ment, are only irregularities which may be waived by the parties, and which do not affect the validity of the judgment, if such judgment should finally be rendered according to law. Or, in other words, a want of jurisdiction can never be alleged as to the interlocutory proceedings in an action where the court has obtained jurisdiction originally, and renders the proper judgment in the cause. D'Ivernois a. Leavitt. In such cases, departures from the provisions of the statute are irregularities, which the party may be relieved against by motion, if made at proper time; and in some cases on appeal, if the irregularities appear on the record. The case of Brown a. Brown (2 Seld., 106) was an appeal to the Court of Appeals in a case in which no appeal by law could be taken to that court. Of course there was no jurisdiction. In The People a. Sturdevant (5 Seld., 263), it is said jurisdiction is the power to hear and determine the subject-matter in controversy between the parties. Where the court has jurisdiction, it has a right to decide every question which arises in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every court. But if it acts without authority, its judgments and orders are regarded as nullities. In Smith a. Grant (15 N. Y. R., 590), the Court of Appeals held that they could not review an order of the Supreme Court referring a case back, &c., and that decision is applicable to all interlocutory orders of a court not affecting the final decision of the case. All the other cases referred to on this point by the defendant's counsel, relate to the jurisdiction of the court originally over the subject-matter of the action. No one case has been cited where it was held that the court had no jurisdiction over the interlocutory proceedings in a cause where it originally had jurisdiction, and rendered final judgment therein. Its proceedings may be irregular, but cannot be said to be void for want of jurisdiction. We are of the opinion that the order of the general term, although irregular, was not void for want of jurisdiction; that as the defendants proceeded to the new trial as ordered, such irregularity was waived; and that there can be no use in vacating the order of the general term when, by the decision then made, the general term would on a new appeal make the same order. The motion to vacate the order of general term is denied. DAVIES, P. J., and CLERKE, J., concurred. Greaton a. Morgan. GREATON a. MORGAN. Supreme Court, First District: General Term, December, 1858. ATTACHMENT.-NON-RESIDENT. The defendant had a place of business in New York city, but boarded in Newark, N. J., where he carried on business, and had repeatedly stated that to be his residence, and was seldom if ever at the ostensible place of business in New York. Held, that he was a non-resident. The cases of Hurlbut a. Seeley (11 How. Pr. R., 507), and Towner a. Church (2 Ante, 299), are not to be extended. Appeal from an order denying a motion to vacate an attachment. In this action the plaintiff attached property of the defendants on the ground that they were non-residents. The defendant moved to vacate the attachment on an affidavit alleging that he had an office in the city of New York, and considered that as his place of residence, although he boarded in Newark, N. J., and carried on a factory there. His affidavit also charged that the plaintiff fraudulently induced him to bring the goods which were attached into the State, in order that he might attach them. This charge was fully denied by the plaintiff's affidavit. The motion was denied at special term, the justice holding that the weight of evidence was in favor of the position that the defendant was a non-resident, and that there was no fraud in the use of the process. The defendant now appealed. Wm. E. Robinson, for the appellants. Albert Mathews, for the respondents. BY THE COURT.*-—INGRAHAM, J.-We think the affidavits used on this motion present such contradictory statements in regard * Present, DAVIES, P. J., and INGRAHAM and CLERKE, JJ. Greaton a. Morgan. to the matter at issue between the parties, as to call for the application of the rule, that upon questions of fact where the affidavits are conflicting, the court on appeal will not interfere with the findings of the justice. Upon the question of residence, Mr. Justice Roosevelt found against the defendant, and his decision can well be sustained, notwithstanding the cases of Hurlbut a. Seeley (11 How. Pr. R., 507; Towner a. Church, 2 Abbotts' Pr. R., 299). As these cases were by the general term, we should feel bound by them to the extent they go, but are not disposed to extend those decisions. In the first case the defendant left his family behind, and avowed at all times his intention to return as soon as he had opened a store in a western town, and was actually returning to the State when the attachment was issued. In the second case, it was held that a man who boarded in New York six days in the week, and did business here, and spent Sunday with his family in Connecticut, was a resident here. Without expressing any opinion as to the consistency of these decisions with the provisions of the statute, it is enough to say that the present case is covered by neither of them. The defendant was in Newark carrying on his business, had repeatedly declared that he resided there; he had no family or home in New York, and was seldom if ever at the ostensible place of business in New York. The cases cited are entirely distinct in their characteristics from the one now before the court. Upon the second ground of the motion, viz., that the plaintiff had fraudulently induced the defendant to bring the goods within the jurisdiction of the court, it is enough to say that the affidavit of the plaintiff directly contradicts the affidavit of the defendant on that point. The order appealed from should be affirmed. VOL VIIL-5 Fairbanks a Tregent. FAIRBANKS a. TREGENT. Supreme Court, First District; General Term, February, 1859. EXAMINATION OF PARTIES.-COMMISSION. A non-resident party is not entitled to the issue of a commission to take his tes timony unless the adverse party has given notice of an intention to offer himself as a witness.* The first clause of section 399 of the Code, should be construed to apply only to the case of examination at the trial. Appeal from an order granting a commission to examine the defendant on his own behalf. The decision of the special term allowing the commission is reported 7 Ante, 21. BY THE COURT.-ROOSFVELT, J.-The Code provides that a party to an action or procceding may be examined as a witness in his own behalf, the same as any other witness. As non-resident witnesses generally may have their testimony taken by commission or written interrogatories and cross-interrogatories, without the necessity of personal attendance in court, it is insisted that, under the language above quoted, the same rule ap plies to non-resident parties. It is undoubtedly true, that the clause in which the above provision occurs, contains no limitation as to non-residence, while it does contain certain other specific restrictions, namely: First, that "the adverse party or person in interest" shall be "living" (although it is not perceived how a dead body can be an "adverse party or person"); second, that he shall not be the assignee or legal representative of a deceased person; third, that the party proposing to be examined shall give ten days' notice of such intended examination. And applying the argument deduced from the maxim of expressio unius exclusio alterius, it would seem to follow that a non-resi * See to the same effect, Hull a. Wheeler, 7 Ante, 411. |