(dissenting). It is conceded law, that inferior *412jurisdictions, like Justiees’ Courts, are confined strictly to the authority given them. They take nothing by implication, and must show the power expressly given, in every instance. Jurisdiction can always be inquired, into in their proceedings, directly or collaterally. They must not only have jurisdiction over the subject-matter of the proceeding, but must acquire jurisdiction over the person of a defendant, of whose person or property they take cognizance. Their proceeding would be void, though they obtained jurisdiction over the subject-matter, if they failed to obtain jurisdiction, also, over the person; and this jurisdiction they can only acquire by the method prescribed by law. It is a cardinal principle in the administration of justice, that no man can be condemned, or be divested of his right or his estate, until he has had an opportunity of being heard. (Bullymore v. Cooper, 46 N. Y., 241, 242.) The justice must acquire jurisdiction over his person, either by the personal service of process, or in some other way, by the consent of the defendant, and no person without his authority can confer jurisdiction on the justice to proceed, so as to bind his person or property; and if judgment be rendered against him before jurisdiction is so acquired, the judgment will be as utterly void as if the justice had proceeded without process, or as if the subject-matter was not within his cognizance. (Borden v. Fitch, 15 Johns., 121; Bigelow v. Stearns, 19 id., 39 ; Mills v. Martin, id., 7 ; Bloom v. Burdick, 1 Hill, 139; Wright v. Douglass, 10 Barb., 110.) A party against whom such a void judgment has been obtained may, at his option, treat the proceeding as a nullity, or he may appeal and have it corrected by a higher court, and the appeal, if taken, gives no life to the proceeding; he may also treat it as void, and sue every person as a trespasser who interferes with his rights under the judgment. (Harrington v. The People, 6 Barb., 610.) ‘ Nor, if he appeals, on the ground of error in fact,' is he obliged to hazard his rights, and get up an issue of fact, to try such issue upon affidavits. Though he may do so, he is not limited to that remedy, nor does one remedy merge the other.
*413In this case, no summons was personally served upon the defendant; no jurisdiction was obtained of his person in that way. How, then, did the justice get jurisdiction of his person so as to proceed to give judgment? No stranger could confer it. The defendant did not give the justice authority. The plaintiff could not, by any consent of his, confer jurisdiction of the person of the defendant. Hntil the justice obtained it, in some way, he could not proceed one step, not even to allow a stranger to appear for him. The statute forbids him to permit any person to appear for him without proof of his authority. The service of a summons by copy added nothing to his jurisdiction of the person; as well might the plaintiff and some convenient friend have appeared before the justice without the issuing of the summons; as it was, the plaintiff and a stranger to the case admitted _ the defendant to be in court, — the plaintiff for himself, and, perhaps, his friend for the defendant. They fixed up an issue. If jurisdiction and judgments can be obtained in this way, there is a door open for immeasurable mischief. It would be monstrous, indeed, if a party should be subjected to judgments obtained against him in this way. Instead of the statute being a protection, it then becomes a skillful man-trap, and instrument of fraud, mischief and injustice in the hands of unscrupulous and designing men.
But it is said, the letter of the statute provides for such an appearance (§ 43 of the justices’ act), “if admitted by the plaintiff.” Such is, indeed, the letter; but when, by this letter, does it apply? when may the plaintiff admit this? when the justice has jurisdiction to act and to allow it to be done, but not before; or when the justice has jurisdiction of the defendant’s person, by the personal service of a summons. It is little short of an absurdity, in my view, to hold the reasonable construction of that statute to be, that whenever a plaintiff appears in a justice’s court, and can find some one, perhaps a chosen friend, to appear for a defendant, whose authority the plaintiff shall admit, that jurisdiction is then conferred upon the justice over the person of whatever defend*414ant the plaintiff or persons so in court shall select and name, and that he can then proceed to enter a valid judgment against him.
It would be a far safer rule to let the defendant admit jurisdiction over his person, than to allow the plaintiff to do it, or even a stranger who may be acting in collusion with the plaintiff. Jurisdiction is not obtained in that way.
For what purpose, then, was the statute enacted? It certainly requires great particularity in the time of giving notice to a defendant, of the manner of serving the process on him, of the return of the constable on the process, of the time which the justice shall wait after the hour appointed. Was it not to protect the defendant in his rights ? Is not all this precaution necessary; is it not demanded, before jurisdiction of the person is obtained by the justice ? What a useless, a worse than useless enactment is this, with all the apparent guards thrown around it, that can be so easily avoided and evaded. Taking the claimed construction to be sound, there is no individual protection at all in this statute. Its language is a sham; its protection a false pretence, and valid proceedings under it may be secured by a farce.
But by a true construction of this statute, according to its spirit and intent, it is safe, sound and protective. If it is applied to a case where the justice has obtained jurisdiction of the person of a defendant by personal service of a summons duly returned, then, whether the defendant appears or not, the justice has jurisdiction as much as if the defendant was present. It is the defendant’s own fault if he does not appear. The justice, having waited his hour, has then power to proceed, when the plaintiff is ready.
The justice’s acts, then, are not void, no matter what errors of law he may commit; they are only voidable, if erroneous. The admission, then, of a party to appear for the defendant, without proof, would only be voidable, because the justice has acquired jurisdiction. If such an attorney, then, appeared without authority, the defendant, on appeal, could, upon an Issue of fact denying the .authority, have that issue tried. *415This is the case provided for in section 366 of the Code, and in Hurd v. Beman (8 How. Pr., 254); Lynds v. McBeth (7 id., 113); but, more especially, Fitch v. Devlin (15 Barb., 47). In this 'ast cited case, the summons was returned personally served, which gave the justice jurisdiction to act, and the Suprev .e Court, upon an issue of fact that the summons was not personally served, joined upon affidavits, on which it being found that the summons was not personally served, held the judgment should be reversed. The judgment before the justice, in that case, however, was not void, but voidable. These cases prove nothing upon the subject of jurisdiction ; but only that the defendant might have had an issue of fact, upon the question of authority of the attorney who assumed to appear, tried upon affidavit. But, as he also appealed upon the error of law, he was not bound to hazard costs and to proceed upon the issue of fact; his safe ground was to proceed upon the law.
The prevailing opinions in this case are based upon the case of A Ackerman v. Finch (15 Wend., 652). The most superficial reading of that case will, I think, show that it does not meet the point at all. There was no question in that case, as here, that the summons was not personally served. There was no question there, as here, that the justice did not have jurisdiction of the person of the defendant. It was only claimed that there was error in permitting attorneys to appear without proving their authority. Neither of the parties in that case appeared in person. The defendant sued out a writ of certiorari, and alleged, among other things, as error, that no authority of the attorneys on either side was proved before the justice. The court properly held that, as Ackerman, the defendant below, had adopted the acts of his own attorney before the justice, he had ratified his acts and could not complain ; and as his attorney before the justice made no objection in the justice’s court to the plaintiff’s attorney, he had waived the objection, which was equivalent to admitting it. But Oowen, J., who delivered the opinion in that case, follows this by a remark most fatal to making that case authority *416in the case before us. He says: “This statute, requiring proof, was passed for the benefit of the opposite party.” Who is the opposite party ? Before the justice, in the case before ns,, the plaintiff had nothing to fear; he was there in person. The defendant, who had not been brought into court, was the opposite party, and he needed the security which this statute confers. In such a case, the justice, whose duty it was to protect him, who had no right to assume jurisdiction over his person except in the manner prescribed by law, allowed the plaintiff, in effect, to bring the defendant into court by an admission. I think this cannot be legally done. This I hold to be error. Suppose the defendant, whose property should be taken under this judgment before the justice, should sue the justice and party in trespass: To defend this, this judgment, as it is returned, should be set up as a defence. The law requires the parties to show .that the justice acquired jurisdiction. Standing upon this record alone is the test of the validity of that judgment. The justice acquired no jurisdiction by the process. The plaintiff acquired none but by ; his own admission.
The judgment entered I hold to be void, in both the County Court and Justice’s Court, and think they should be reversed.
Judgment affirmed.