« ForrigeFortsett »
have the right to seek the next most avail ant's train from Tecumseh to Shawnee; and able place, the one that reasonably offers the it was the duty of the railway company to place of greatest safety, and with proper cau provide him a suitable vehicle in which to tion occupy the same until the carrier shall ride, safe and fit for the use, to provide hill provide them with better. Our Legislature, with such accommodations as were usual and following the example of some of the older reasonable, to provide him with a seat and states, recognized this right at an early per- give him a reasonable degree of attention, iod of our territorial existence, and enacted and no degree of care would excuse any destatutory provisions which, in a great meas fault in this respect. The railway company ure, control the determination of the question was a carrier of persons for hire or reward, before us. These provisions are as follows: and was operating a mixed train, consisting
Wilson's Rev. & Ann. St. 1903, § 657: “A of passenger and freight cars, upon which it carrier of persons for reward must use the received the plaintiff as a passenger. In such utmost care and diligence for their safe car case the law required of the carrier the "utriage, must provide everything necessary for most degree of care and diligence for his safe that purpose, and must exercise to that end a carriage," and imposed upon it the same rereasonable degree of skill."
sponsibility and duty as for carrying passenSection 658: "A carrier of persons for re gers upon passenger cars. It is true the carward is bound to provide vehicles safe and rier is permitted to make rules and regulafit for the purposes to which they are put, tions for the conduct of its business, and if and is not excused for default in this respect such rules are lawful, are public, reasonable, by any degree of care."
and uniform in their application, may require Section 659: "A carrier of persons for re the passengers to obey them. The manner of ward must not overcrowd or overload his ve making such rules public, so as to charge pashicle."
sengers with notice thereof, is prescribed by Section 660: "A carrier of persons for re the statute,—they must be "posted up at the ward must give to passengers all such accom time in a conspicuous place inside of its pasmodations as are usual and reasonable, must senger cars then in the train." If such regutreat them with civility, and give them a rea lations are so posted, and the passenger is sonable degree of attention."
injured while violating such reasonable rules, Section 712: "A common carrier of persons then such passenger cannot recover, provided must provide a sufficient number of vehicles the carrier had furnished room inside its pasto accommodate all the passengers who can senger cars sufficient for the accommodation be reasonably expected to require carriage at of its passengers. The statute exempts the any one time."
carrier from liability for injuries to a pasSection 713: "A common carrier of persons senger, when injured on a platform or in a must provide every passenger with a seat. baggage car, when it has performed two conHe must not overload his vehicle by receiving ditions, viz.: Posted up in its passenger cars and carrying more passengers than its rated in a conspicuous place printed regulations capacity allows."
forbidding the passenger to occupy such Section 714: "A common carrier of persons places, and provided him with sufficient acmay make rules for the conduct of his busi commodations in its passenger coaches. It ness, and may require passengers to conform necessarily follows that if the carrier has failto them, if they are lawful, public, uniform ed in either of these requirements, and the in their application, and reasonable.”
passenger is injured by the negligence of the Section 1030: "In case any passenger on carrier while riding upon the platform or in any railroad shall be injured while on the the baggage car, the carrier is liable for such platform of a car while in motion, or in any injuries. baggage, wood or freight car, in violation of Whether the statute relating to the liability the printed regulations of the corporation, of carriers for injuries to passengers upon posted up at the time in a conspicuous place platforms or in baggage cars is an adopted inside of its passenger cars, then in the train, one we are not advised, but an examination such corporation shall not be liable for the of the adjudicated cases discloses that the injury; provided, it had furnished room in states of New York and Missouri cach have side its passenger cars sufficient for the ac statutes identical in language with ours. commodation of its passengers."
They have been in force in those states for Section 1051: "When fare is taken by any more than half a century and have received railroad corporation for transporting passen uniform construction. It is held in both gers on any mixed train of passenger and states that it is the duty of the carrier. if it freight cars, or on any baggage, wood, gravel has adopted rules and regulations resperting or freight car, the same care must be taken the carrying of persons upon the platforms and the same responsibility and duties are of cars or upon baggage cars, that in order assumed by the corporation as for passengers to charge the passenger with the observane on passenger cars."
of such rules they must be printed and must When the plaintiff purchased his ticket be posted up in the passenger cars in such and paid his fare to the station agent at Te conspicuous place as will be observalle to cumseh, he was a passenger for reward, and passengers within the cars; that no mere entitled to transportation upon the defend words or warnings will fill the requirement
of this statute, but the printed rules or reg- , injury results, bis conduct will preclude him ulations must be actually posted; also, that from the right of recovery. While there are the carrier must provide the passenger with cases which hold that the passenger will be a seat in its passenger cars, and that if any | justified in riding upon the platform if he of the seats are occupied with luggage, or is unable to obtain a seat in the car, the betone passenger is occupying more than one ter rule would seem to be that if there is seat, he is not bound to request such obstruc standing room within the car he should tions removed, but may seek some other un stand inside, rather than expose himself to occupied place. Nolan v. Brooklyn, etc., R. peril by riding upon the platform. IIe is R. Co., 87 N. Y. 63, 41 Am. Rep. 315; Werle not required, however, to disregard the usual v. Long Island R. R. Co., 98 N. Y. 630; Wil courtesies of life in order to get an advanlis v. Railroad, 31 X. Y. 670; Weymouth v. tage over other passengers in securing a Broadway, etc., Co., 2 Misc. Rep. 506, 22 N. place within the car. If, therefore, the car Y. Supp. 1017; Merwin v. Manhattan Ry. should be so crowded that the passenger, Co., 113 N. Y. 659, 21 N. E. 413; Graham v. in the exercise of reasonable prudence, would Manhattan Ry. Co., 140 N. Y. 336, 43 N. E. be justified in concluding that he could not 917; Morrison v. Erie R. R. Co., 56 N. Y. 307; get inside without unreasonably pushing or Schaefer v. Union Ry. Co. (Sup.) 51 N. Y. crowding his way, he would be under no duty Supp. 431; Weymouth v. Broadway, etc., Co., to attempt to enter, and it would not be 142 N. Y. 681, 37 N. E. 825; Vail v. Broad negligence for him, under such circumstanway, etc., ('0., 147 N. Y. 377, 42 V. E. 4, 30 ces, to ride upon the platform." Our stat. L. R. A. 626; Sherman v. Hannibal & St. ute places the riding upon the platform and Joe R. R. Co., 72 Mo. 62, 37 Am. Rep. 423; | in a baggage car under the same rule. Wagner v. Mo. Pac. Ry. Co., 97 Mo. 512, 10 Judge Thompson, in his masterful work S. W. 386, 3 L. R. A. 156; Berry v. Mo. on the Law of Negligence (2d Ed., vol. 3, § Pac. Ry. Co., 124 Mo. 223, 25 S. W. 229; 2958), says: “Upon the question whether conGerstle v. U. P. Ry. Co., 23 No. App. 361; | tributory negligence is to be ascribed to a Chaney v. 1. & M. Ry. Co., 176 No. 508, 75 passenger who is hurt while riding in the S. W. 595; Higgins v. Han. & St. Joe R. R. baggage or express car, under such circumCo., 36 Mo. 418; Choate v. Mo. Pac. Ry. Co., stances that he would not have been hurt 67 Mo. App. 105. The rule deduced from if he had remained in a passenger car, there these cases. under statutory provisions like is considerable conflict of judicial opinion. ours, is that it is not negligence per se for a
It is no doubt a reasonable regulation that passenger to ride upon a platform of a mov. passengers shall not ride in the baggage ing car, or in a compartment not intended for
car. The safety of the passengers, the imthe use of passengers, where the trains are peded discharge of duty by the company's overcrowded, or he cannot without great dan
servants, and the security of the property ger or difficulty find a seat in a passenger
conveyed therein, are considerations in supcoach, even though the carrier has provided | port of this rule. Moreover, all passengers coaches for its passengers and has posted no
are probably aware that the hazards of travel tice of its rules and regulations; that in case
are increased by riding in this portion of the of injury to a passenger while on a platform
train. Prima facie, therefore, a passenger or in a baggage car the question of the pas
who, unless excused by special circumstances, senger's negligence in occupying such place is
elects to ride in the baggage car instead of one of fact to be determined by the jury.
remaining in one of the passenger coaches But notwithstanding these statutory pro
-assuming that there is room for himvisions, which are plain and controlling, we
commits an impropriety of such a character think the great weight of modern and well
that, in case he is injured while so riding considered cases supports the doctrine that,
and the circumstances are such that he would if the train is crowded, it is not negligence not have been injured if he had remained in per se for the passenger to occupy the plat
one of the passenger coaches, he will be preform or baggage car, and the question as to
cluded from recovering damages from the whether he was justified in assuming such company, unless it appears that he is riding risk is one for the jury. It is said in Hutch there by permission of the conductor for the inson on Carriers (30 Ed.) $ 1198: "If, benefit of the company.” It will be observhowever, the railway company has permitted ed that Judge Thompson holds that the pasthe car to be overcrowded, the passenger senger riding in the baggage car is guilty of will not as a matter of law be chargeable indiscretion, and prima facie negligent, when with negligence in riding upon the platform, he elects to ride in the baggage car, when and the question whether in any particular there is room for him in the passenger coach, case he was justified in doing so will or and, unless excused by special circumstandinarily be one of fact for the jury. But ces, such as riding there with the permiswhen the car is overcrowded, and in conse sion of the conductor for the benefit of the quence the passenger is obliged to ride upon company, or where the regulations are habitthe platform, he must exercise for his safety ually disregarded, or it is (ustomary to cona degree of care commensurate with the in vey and accept fare or tickets from passencreased dangor usually incident to such an gers in the baggage car without objection exposed place, and if he fails to do so, and by those having the management of the train.
The rule that the passenger will not be the plaintiff went upon the train that no guilty of negligence per se by riding upon the seats could be obtained, and some testified platform or in the baggage car, when the that it was even difficult to get to the door platforms or passenger cars are crowded, or of the car. Upon the other side, evidence when he is unable to observe any vacant was submitted to the effect that there were seats, but that the question as to whether he several vacant seats in one of the passenger acted under all the circumstances as a rea cars, and that there was no difficulty in sonably prudent man would have acted, and getting into the passenger coaches. This was whether the position he occupied at the time a material question in the case. It was also of the accident was one of increased risk, a material question whether the carrier had or in fact bore any causal relation to the posted notice of its rules and regulations reinjury, is supported by the following author lating to passengers occupying the baggage ities, in addition to those cited supra : Hard
We think, in view of the fact that the enbergh v. St. P. & M. R. R. Co., 39 Winn. 3, compartment occupied by the plaintiff was 38 N. W. 625, 12 Am. St. Rep. 610; Thorpe v. in the rear of the train, and he was sitting N. Y. C. & H. R. R. R. Co., 76 N. Y. 401, upon a box in an unexposed part of the car, 32 Am. Rep. 323; St. L. & I. M. Ry. V. that there is a debatable question as to Leigb, 45 Ark. 368, 53 Am. Rep. 558; Louis whether the position he occupied was any ville, N. 0. & Tex. Ry. v. Patterson, 69 Miss. more hazardous than a seat in the passenger 421, 13 South. 697, 22 L. R. A. 259; Jacobus coach, if there was such a car in the train. v. St. Paul, etc., Ry., 20 Minn. 134 (Gil. 110), These questions were questions of fact, upon 18 Am. Rep. 360; C. & O. Ry. v. Jordan which reasonable minds might fairly come (Ky.) 76 S. W. 145; Kentucky Central Ry. to different conclusions. v. Thomas, 79 Ky. 160, 42 Am. Rep. 208; The judgment of the district court is reMorgan v. L. S. & M. S. Ry., 138 Mich.
& M. S. Ry., 138 Mich. versed, and a new trial ordered, at the costs 626, 101 N. W. 836, 70 L. R. A. 609; Lynn of the defendant in error. All the Justices v. So. Pac. Ry., 103 Cal. 7, 36 Pac. 1018. concur, except BURWELL, J., who triel the 24 L. R. A. 710; McGuire v. Middlesex Ry. case below, not sitting, and IRWIN and Co., 115 Mass. 239; L. S. & M. S. Ry. Co. v. PANCOAST, JJ., absent. Kelsey, 180 Ill. 530, 54 N. E. 608; Chicago & Western Ind. Ry. v. Newell, 212 Ill. 332, 72 N. E. 416; Benedict v. Mil. & St. P. Ry.,
(19 Okl. 203) 86 Minn. 224, 90 N. W. 300, 57 L. R. A. 639,
CASSADY et al. v. MORRIS. 91 Am. St. Rep. 345; Lynn v. So. Pac. Ry. (Supreme Court of Oklahoma. Sept. 5, 1907.) Co., 103 Cal. 7, 36 Pac. 1018, 24 L. R. A.
1. JURY-RIGHT TO JURY TRIAL, 710; Bonner et al. v. Glenn, 79 Tex. 531,
A motion to discharge exempt property 15 S. W. 572; C. & A. Ry. v. Fisher, 141
from attachment is triable to the court or judge, Ill. 614, 31 N. E. 406; C. & 0. Ry. v. Lang's
and neither party is entitled to a jury.
[Ed. Note.-For cases in point, see Cent. Dig. Adm'r, 100 Ky, 221, 38 S. W. 503, 40 S. W.
vol. 31, Jury, 8 90.] 451, 41 S. W. 271; Graham v. Receiver, 20
2. HOMESTEAD — EXEMPTIONS – TORT OF FAWash. 466, 55 Pac. 631, 13 L. R. A. 300, 72
THER. Am. St. Rep. 121; Marquette v. C. & N. Ry. The homestead of the family is exempt to Co., 33 Iowa, 561; Penn. Ry. Co. v. Paul,
the family and cannot be taken on attachment 126 Fed. 157, 62 C. C. A. 135; Dennis V.
for the tort of the husband and father.
(Ed. Note.--For cases in point, see Cent. Dig. Pittsburgh, etc., Ry. Co., 163 Pa. 624, 31
vol. 23, Homestead, $ 100.] Atl. 52; G., H. & San A. Ry. Co. v. Morris,
(Syllabus by the Court.) 94 Tex. 505, 61 S. W. 709; Trumbull, Rec., v. Erickson, 97 Fed. 891, 39 C. C. A. 536;
Error from District Court, Kay County; IIighland Av. & B. R. R. v. Donovan, 94 Ala.
before Justice Bayard T. Hainer. 299, 10 South. 139; Pray v. Omaha St. Ry.,
Action by Tabitha Frances Cassady and 44 Neb. 167, 62 N. W. 447, 48 Am. St. Rep.
others against William H. Morris. Judg717; Blake v. Burlington, C. R. & N. Ry. Co.,
ment for defendant, and plaintiffs bring er89 Iowa, 8, 56 N. W. 105, 21 L. R. A. 559;
ror. Affirmed. B. & 0. Ry. v. State, 72 Md. 36, 18 Atl. 1107, Moss & Turner, for plaintiffs in error. 6 L. R. A. 706, 20 Am. St. Rep. 451; Cody Sam K. Sullivan and W. C. Tetirick, for dev. N. Y. & N. E. R. R. Co., 151 Mass. 462, 24 fendant in error, N. E. 402, 7 L. R. A. 813; Wagner v. Mo. Pac. Ry. Co., 97 Mo. 512, 10 S. W. 486, 3 BURFORD, C. J. This cause presents for L. R. A. 156; Berry v. Mo. Pac. Ry. Co., our interpretation the statutes providing for 124 Mo. 223, 25 S. W. 229; N. Y., L. E. & W. exemption of the homestead. The plaintiffs Ry. Co. v. Ball, 53 N. J. Law, 283, 21 Atl. in error brought their action in the district 1032; Washburn v. Nashville, etc., R. R. court of Kay county against William H. Co., 40 Tenn. 638, 75 Am. Dec. 784; Inter Morris to recover damages for the felonious national & G. N. Ry. V. Ormond, 64 Tex. killing of the husband and father and son 483.
and brother of the plaintiffs. The action is We think the court erred in taking this one in tort to recover damuges. The plaincase from the jury. A number of witnesses tiffs caused an attachment to issue and be testified that the train was so crowded when levied upon a farm belonging to Morris il
Kay county. The defendant moved to dis- disposing of such questions, and, indeed, we charge the property from the attachment believe it has been the general practice in and seizure upon the ground that it was the Kansas, from which state we have borrowed homestead of the family. The issue upon our procedure, as well as in this territory the motion to discharge was tried to the since its organization, to try such questions court, and the court found for the movant by the court. We think there was no error and ordered the property released from the in refusing a jury in this case. levy. From this order the plaintiffs ap The second proposition contended for is pealed, and present three alleged errors: that the attached property should not have First, that the court erred in refusing them been dismissed until the plaintiff had secura jury upon the trial of the motion to dis ed a judgment, and its status should be decharge the property; second, that the issue termined as of that time. We do not conwas prematurely heard and determined ; sider this question of much moment. Clearthird, that, suit being to recover damages in ly, if the plaintiff was not entitled to the tort, no exemption is allowed.
attachment at the time it was levied, the As to the first proposition, we think there
defendant was entitled to have the property is not much room for contention. The Con discharged. The law would not require stitution of the United States guarantees him to have his property incumbered with the right of trial by jury in all suits at an apparent lien which had no validity, for common law where the value exceeds $20. the purpose of enabling the plaintiff to seThis case does not come within this class. cure a valid lien at some future period. The It is not a suit at common law, but a spe plaintiffs were either entitled to the attachcial proceeding governed by statute and is ment when it was issued and levieil, or they a substitute in a measure for the bill of were not entitled to it at all; and the dediscovery. Our Code of Civil Procedure (sec fendant had the right to have this question tion 4453, Wilson's Rev. & Ann. St. 1903), up determined, and it was the duty of the court on the subject of trials, provides: "Issues to hear it at the first available opportunity. of law must be tried by the court unless The third contention is that the suit is for referred. Issues of fact arising in actions a tort, and that there is no exemption froin for the recovery of money or of specific real a judgment sounding in tort. Whatever the or personal property shall be tried by correct rule may have been prior to the jury, unless a jury trial is waived, or, a rer amendment of our exemption laws in 1905, erence be ordered as hereinafter provided." | it does not seem that there can be any doubt Section 1154: "All other issues of fact shall as to its meaning now. It is provided (Laws be tried by the court, subject to its power to 1905, p. 253, c. 18, § 1): "The following proporder any issue or issues to be tried by jury erty shall be reserved to every family reor referred as provided in this Code." Up siding in the territory exempt from attachon the subject of attachments, in section ment or execution and every other species of 4415, it is provided: “The defendant may, forced sale for the payment of debts, except at any time before judgment; upon reason as hereinafter provided : First, the homeable notice to the plaintiffs, move to dis stead of the family, which shall consist of charge an attachment as to the whole or the home of the family, whether the title part of the property attached." Section to the same shall be lodged in or owned by 4416: "If the motion be made upon affidavits the husband or wife." The exemption is to on the part of the defendants or papers the family. How can the family have the and evidence in the case but not otherwise, home exempt if it may be taken for the the plaintiff may oppose the same by affi wrong of the husband and father? It seems davits or other evidence in addition to that but to ask this question suggests its own on which the order of attachment was answer. In this case it is shown that the made." By section 3, art. 2, c. 24, p. 194 defendant has a family consisting of a wife Laws 1899, the judge at chambers is given and children; that this farm is the homeauthority to dissolve attachments. The is stead and home of the family; that they sue is formed by a denial of the attachment leased it temporarily, with no purpose of affidavit, or upon the denial of facts set up | abandoning it, but with the express purpose in a motion to discharge. None of these af of returning to it; that they had no other fidavits or motions are, properly speaking, home. If the home is exempt to the head pleadings. The issues referred to in section of the family, then, as a general rule, it may 4453, supra, are the issues made by the be taken for his torts, but under our statute pleadings in the case. Mere collateral issues the Legislature has clearly indicated its purthat may arise upon motions are not includ pose by the amendment of 1990) to exempt ed in the issues triable to a jury. It is evi- the home to the entire family from forced dent, taking all the statutory provisions to sale of any character, regardless of whether gether, that the Legislature did not intend the title is in the husband or in the wife, that the issue formed upon a motion to dis or in both, and this purpose is so clearly apcharge an attachment, or to discharge ex parent that we need not look to decisions of empt property from attachment, should be other courts to determine the proper intersubmitted to a jury. The purpose was to pretation to be given our statute. If the provide a speedy and summary mode of home of this family can be taken upon a
judgment against Morris for his felonious ; dictment is based upon the ground that the acts, then the law fails entirely of its pur grand jury was not drawn and impaneled as poses, and the family is no better situated provided by law, a showing must be made that than if the law had never been changec. those facts were not known to the defendan Each member of the family residing upor 'or his counsel until after the jury was sworn the homestead and in good faith making ii for the trial of the cause, and, under section a home is equally protected by the statute, 5557, the defendant must produce at the and has such an interest as will prevent its hearing in support of his motion affidavits of forcible seizure for the debts or liabilities : witnesses, or the same may be shown by the of either.
records of the courts, or he may take testiWe find no error in the record.
mony in support thereof, as provided in secThe judginent is affirmed, at the costs of : tion 5399, which provides for the compulsory the plaintiffs in error. All the Justices con attendance and testimony of witnesses to be cur, except HAINER, J., who trint the cause used in support of the motion. The motion below, not sitting, and IRWIN, ,, absent. for a new trial in this case, verified by the
affidavit of the defendant, presented numer
ous questions of fact relative to the regulari(19 Okl. 274)
ty of the proceedings of the various election ANDERSON V. TERRITORY.
boards throughout the county at the general (Supreme Court of Oklahoma. Sept. 5, 1907.)
election of 1904 in signing and certifying to
the lists of names of persons to serve as 1. APPEAL-REVIEW-EVIDENCE. Where the question for review depends in
jurors in the several precincts. The apporany wise upon the evidence, such evidence must
tionment of the number of persons to serve be presented in full to the appellate court, or as jurors in the respective voting precincts the question will not be considered.
by the county clerk was also challenged. [Ed. Note. For cases in point, see Cent. Dig.
It will thus be seen that the issues of fact vol. 3, Appeal and Error, $ 2911.) 2. SAME-MOTION FOR NEW TRIAL.
presented to the trial court on the hearing of Where a motion for a new trial presents
the motion were: First. Were the facts re material questions of fact necessary for deter lied upon to set aside the indictment known mination, error cannot be predicated upon the to the plaintiff in error or his counsel before overruling of said motion, where the record fails
the jury was sworn to try his cause? Seeduced upon the hearing.
ond. Were the allegations of irregularity set [Ed. Note.-For cases in point, see Cent. Dig out in the motion supported by sufficient evivol. 3, Appeal and Error, $8 2916, 2017.)
dence? The issues thus presented necessitat(Syllabus by the Court.)
ed the investigation of a broad field of huError from District Court, Comanche Coun
man activity. They would admit of the in
troduction of affidavits and oral and record ty; before Justice F. E. Gillette.
testimony. The scope of the examination at William Anderson was convicted of man
the hearing of the motion might be inuch slaughter, and brings error. Affirmed.
broader than the trial itself, and would cerRoss & Anderson, for plaintiff in error. P.
tainly necessitate a full and complete record C. Simons, Atty. Gen., for the Territory. in this court of all the evidence introduced
upon said hearing, before it could determine GARBER, J. The plaintiff in error was whether or not error had been committed. convicted of the crime of manslaughter in An examination of the record before us fails the first degree at the February, 1905, term to disclose any recital that the case-made conof the district court of Comanche county, and tains all or any of the evidence offered or adsentenced to eight years' imprisonment in the mitted at the hearing of the motion for a new territorial prison at Lansing, Kan. At the trial. The record fails to show whether or September, 1905, term of the district court not any such evidence was offered or admitof said county, the same being the next term ted. In fact, the only record of the proceedafter the trial, he filed his motion for a new ings relative to the hearing and overruling of trial, setting up that the grand jury which the motion of which the plaintiff in error returned the indictment against him was not complains is set out in a journal entry which drawn and impaneled as provided by law. reads as follows: "Territory of Oklahoma y. The motion for a new trial being overruled, William Anderson. And now at this time, plaintiff in error prosecutes this appeal. November 1, 190.5, this cause is called on mo
The only question raised in the motion for tion of defendant for a new trial. Said moa new trial was the legality of the panel of tion is considered and overruled, to which the grand jury, and the only error assigned defendant excepts, and exception allowell. is the overruling of said motion. Nection Thereupon defendant is allowed to December 5.138, Wilson's Rev. & Ann. St. 1990:3, provides 1, 1905, in which to make, serve, and fil., that a motion for a new trial based upon the case-made in the Supreme Court." It will ground that the grand jury was not properly thus be seen that this court is not furnished drawn or impaneled must be filed not later with a sufficient record of evidence to deterthan the next term after trial and in this mine whether or not error was committed in case the mution was filed in time. Section: J41M overruling the motion for a new trial. On provides that, if a motivu tu set aside the ju the other hand, every jurisdictional requi