Gervais v. Chicago, Rock Island & Pacific Railway Co.

Brady, J.

This action was brought by the plaintiff against the defendant, a foreign corporation, to recover damages for injuries to his wife caused by its negligence. The complaint was demurred to upon three grounds: First, that the court had not jurisdiction of the person; secondly, that it had not jurisdiction of the subject of the action; and, thirdly, that the complaint did not state facts sufficient to constitute a cause of action. The proposition argued is that the residence of the plaintiff in this state was essential to confer upon this court jurisdiction of the cause of action urged against the defendant. The answer to this is found at once in section 488 of the Code, which provides in distinct terms that the defendant may demur to the complaint when it appears upon the face thereof that it has not jurisdiction of the person, or of the subject-matter, or of the subject of the action, as well as for other causes therein stated. How, it does not appear upon the face of the complaint that the plaintiff is not a resident of the state of Hew York, and that disposes of the proposition.

The learned justice in the court below, in disposing of the demurrer, indulged in a somewhat elaborate opinion, covering other grounds, and going more extensively into the consideration of the subject than is deemed to have been necessary for the disposition of the question presented: The supreme court is by the constitution made a court of general jurisdiction of law and equity, (article 6, § 6,) and its jurisdiction cannot be limited either by the legislature, dr by any power conferred by it upon the court itself. People v. Nichols, 79 N. Y. 582. It had unquestionable jurisdiction over the subject-matter of this action, therefore, and its authority to entertain it will be presumed as to the parties, and the presumption continued until the question is ■disposed of in the manner provided by the laws of the state. The manner provided is by demurrer or by answer. Code, §§ 488, 498; Bailey v. Spofford, 14 Hun, 86. It is one of jurisdiction, and always open to inquiry, it is true, but must be presented according to the rules of the forum in which the question is pending. If, on the trial, it appeared, for example, that the plaintiff was not a resident of the state, the objection arising therefrom could be immediately urged, and the proper result declared. For these reasons the judgment appealed from should be affirmed, with liberty to the defendant to answer in 20 days on the payment of costs of the demurrer and appeal.

Daniels, J. I concur in the result.