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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 49 At the Special Term, Mr. Justice INGRAHAM wrote a brief opinion, which seems to have been adopted by the majority of the court at General Term, in which he said: "I think it very doubtful whether any such action can be maintained as was brought in this case. The only proceeding for such a purpose is under the Revised Statutes, and not an action; and the proceeding can only be to compel a determination upon a claim which any other person may make to an estate, and not against persons claiming distinct parcels of the estate, so as to include all in one judgment. In the complaint, the interest claimed by the defendants is not stated, but, by the answers, it appears some claim one-eighth; some, one-sixteenth; some, one-thirty-second, and some one-ninetysixth. No judgment can be properly rendered against them jointly. If this is not to be regarded as an action, there can be no allowance." It is thus seen upon what ground the order was granted.
This action was commenced in the Supreme Court; a court of general jurisdiction in law and equity. The respondent was properly served and brought into court, and she appeared and answered, and defended the cause in all its stages. She made no objection to the jurisdiction of the court, and took no exception to any of its rulings, and judgment, in the ordinary form, was rendered against her. She did not appeal from the judgment, but seeks to attack it collaterally, by motion to set it aside. Can the decision of the court ordering this judgment be reviewed in this way? Suppose there had been no statute authorizing an action or special proceeding to determine the conflicting claims to real estate, and the plaintiff had commenced this action in equity, alleging his title, possession, etc., and that the defendants unjustly claimed title to the real estate, and praying that his title might be established and quieted, and the conflicting claims determined; and suppose the defendants had answered and defended as they have in this case: the court having jurisdiction of the parties, one of the questions for it to determine would be whether such an action could be maintained. If the *Page 52 defendants made no objection to the sufficiency of the complaint, and litigated the cause upon the merits, could there be any doubt that they would be bound by the judgment pronounced? But suppose they did raise objections, it would be the duty of the court to decide such objections, and if the court erred, the only mode of review known to the law would be by appeal from the judgment, or a motion for a new trial, upon a case or bill of exceptions.
But we have statutes upon the subject, conferring upon the Supreme Court jurisdiction to determine the conflicting claims to real estate, and it seems to be somewhat controverted whether the proceeding should be a special one under the Revised Statutes or an action under the Code. In this case an action was resorted to, and it was one of the questions for the court to decide, whether the action was proper, and that decision according to every rule of law applicable to such cases must be final, until, according to some of the modes of review known to the law, it has been reversed. This would be so, even if the defendants had in some form objected to the plaintiff's right to maintain the action. But can they waive all objection and substantially admit that the form of the remedy is right, and then, after final judgment, complain that the judgment is a substantial nullity, pronounced without jurisdiction and therefore void? In Wilcox v. Jackson (13 Peters, 511), it is said: "Where a court has jurisdiction, it has a right to decide every question which occurs in the case, and whether its decision is correct or otherwise, its judgment, until reversed, is regarded as binding in every other court." InThe State of Rhode Island v. The State of Massachusetts (12 Peters, 718), Mr. Justice BALDWIN, delivering the opinion of the court, says: "Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit; to adjudicate or exercise any judicial power over them; the question is whether, in the case before a court, their action is judicial or extra-judicial; with or without authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the *Page 53 power to render a judgment or decree, then the court has jurisdiction. What shall be adjudged or decreed between the parties, and with which the right of the case, is judicial action, by hearing and determining it." In People v.Sturtevant (9 N.Y., 263), Judge JOHNSON says: "Jurisdiction does not relate to the rights of the parties as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced, nor the right of the plaintiff to avail himself of it if it exists. It precedes these questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity either in the plaintiff or in any one else. The case we are considering illustrates the distinction I am endeavoring to point out as well as any supposed case would. It presents these questions: Have the plaintiffs shown a right to the relief which they seek? And has the court authority to determine whether or not they have shown such a right? A wrong determination of the question first stated is error, but can be re-examined only on appeal. The other question is the question of jurisdiction. (See also, In the Matter ofCanal and Walker Streets, 2 Kernan, 406; Bangs v.Duckinfield, 18 N.Y., 592.) Within these principles, so ably stated by the learned judges, can there be any doubt that the court had jurisdiction of this case? It had jurisdiction of the persons of the defendants by the service of process in the ordinary way, and it was its duty to determine whether the action could be maintained and the relief claimed could be granted. And even if these questions were erroneously determined, it does not affect the question of jurisdiction, and the error must be corrected by some one of the regular modes of review provided by law.
It would be a very unwise administration of justice and lead to much vexations litigation if a judge holding one Special Term could, upon mere motion, set aside the decision and judgment of another judge at Special Term upon allegations that the latter had erred as to any of the questions submitted *Page 54 for his determination. Here there is no allegation of any mistake that has caused wrong to the defendants, or that there was any collusion between the attorneys, or that the case was not properly defended by the respondent's attorney. It is simply a case where one judge differs as to the law from another judge who tried the case. Without going further, there would be abundant reason for reversing the order appealed from. But I am clearly of the opinion that the court did not err in entertaining the action and rendering the judgment.
The Revised Statutes (2 R.S., 312) provide a special proceeding for the determination of claims to real estate. The proceeding has many of the incidents of an action, particularly as amended by chap. 511 of the Laws of 1855. But the Code, section 449, provides as follows: "Proceedings to compel the determination of claims to real property, pursuant to the provisions of the Revised Statutes, may be prosecuted by action under this act without regard to the forms of the proceedings as they are prescribed by that statute." This section was permissive, and gave a party a choice of remedies by action under the Code, and by special proceedings under the Revised Statutes. The Revised Statutes provided a remedy by special proceedings to settle conflicting claims to real estate. The Code provides that the same relief may be sought by action without reference to the forms provided in the Revised Statutes. The relief is to be sought by the ordinary proceedings of an action. This was so held in Hammond v. Tillotson (18 Barb., 332); Mann v. Provost (3 Abb., 446); Peck v. Brown (26 How., 350); Burnham v.Onderdonk (41 N.Y., 425). But if it should be held that the action under the Code is required to conform to the provisions of the Revised Statutes, as amended in 1855, then the respondent, by appearing and taking part in the proceedings in all their stages from the commencement to final judgment, without making any objection, must be held to have waived any objections to any irregularities in the proceedings which they might otherwise have made. *Page 55
It is claimed, on the part of the respondent, that the plaintiff could not properly unite all the claimants as defendants in the action. I cannot doubt that this claim is entirely unfounded. Here are twenty-four persons claiming title to this real estate. They all denied plaintiff's right upon the same ground, and claimed title from the same source, and, therefore, had the same defence to the action. It cannot be that, under the Revised Statutes, it would have been necessary for the plaintiff to have instituted, in such a case, twenty-four special proceedings. There is nothing in the letter or the object of the law which would require this, and the proceeding could be conducted against several as well as one. Under the Revised Statutes, these defendants, if they had all been in possession of this real estate, claiming the same title which they set up as defendants, in this action, could all have been united as defendants in an action of ejectment; and they could, if they had chosen to do so, all have united in an action of ejectment against the plaintiff. Hence, there was no error in the joinder of the defendants. But if there was, it was waived by the omission to raise the objection in the answer or upon the trial. (Fosgate v. The Herkimer Manufacturing and Hydraulic Co.,12 N Y, 580.)
It is also objected, that it appears, by the caption to the findings of Mr. Justice BARNARD, and of the judgment, that the action was not tried at any term of court, but before the judge, out of court, at his chambers. This objection was not made in the moving papers, and seems to have been raised for the first time in this court. The order to show cause, and the order setting aside the judgment, both assume and state, in substance, that the action was tried in court. If the objection had been made in the moving papers, it could have been made to appear more clearly, perhaps, that the action was tried in court, and, hence, the objection should not be permitted to be raised here for the first time. But it is sufficient that it appears that the action was tried at a Special Term, held at the City Hall, the place for holding courts in the city of New York. The chambers of the judge may *Page 56 have been in the court-room, and while it is recited that it was a Special Term for motions and chamber business, we cannot assume that there was not a regular court sitting there for the hearing of all Special Term business, in the face of the fact that the parties, without objection, went to trial. It may be that this particular place for holding the court was provided by the sheriff under sections 24 and 28 of the Code, and the Special Term may have been adjourned to the judge's chambers under section 24. Every presumption must be in favor of the regularity of the proceeding in this respect.
The only other objection to be considered is as to the extra allowance. If this was to be treated as an action under the Code, then the court had jurisdiction over the question of extra allowance, as in other actions. If it was to be governed as to costs by the Revised Statutes, then it is provided (§ 7, as amended in 1855) that the court can award costs "as in other personal actions." Mr. Justice BARNARD, at Special Term, then, had jurisdiction to decide the question of extra allowances, and another judge, at Special Term, could not, upon motion, set aside or reverse his decision. And even if the extra allowance was improperly granted, it would not authorize such an order as was made in this case.
The order is clearly appealable under the fourth subdivision of section 11 of the Code, as amended in 1870.
Having thus given the case the careful consideration its importance seems to demand, I have reached the conclusion that the order appealed from should be reversed, and the motion dismissed, with costs.
All concur.
Order reversed and motion denied, with costs in both courts. *Page 57