CHAPTER XXXV.

JURISDICTION.

§ 968. Jurisdiction defined. The jurisdiction of a court is its power to hear and determine a cause-to hear and determine the subject-matter in controversy between the parties to a suit; to adjudicate or exercise judicial power. A matter is "coram judice" whenever a case is presented which brings this power into action. The jurisdiction of a court has reference-1. To the court's power over the parties; 2. Over the subject-matter,-i. e. the nature of the cause of action; 3. Over the property in controversy; and 4. To its authority to render the judgment. Jurisdiction must always be exercised in one of two modes-in rem, or in personam. When it ceases to exist, the only function remaining in the court is that of announcing the fact and dismissing the cause, even though it had been submitted for decision.5

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There is a marked distinction between jurisdiction and the exercise of jurisdiction. When jurisdiction has attached, all that follows is but the exercise of jurisdiction; but jurisdiction does not attach until the conditions upon which it depends are fulfilled."

Jurisdiction carries with it the power to render correct as well as erroneous judgments. It is the power not only to hear and determine, but also the power to render the particular judgment in the particular case, and want of jurisdiction cannot be predicated upon mere error in its exercise."

1 United States v. Arredondo, 6 Pet. 709, 8 L. Ed. 554; Rhode Island v. Massachusetts, 12 Pet. 718, 9 L. Ed. 1233; Grignon v. Astor, 2 How. 328, 11 L. Ed. 283; Central Pacific R. R. Co. v. Placer County, 43 Cal. 365; Sherer v. Superior Court, 96 Cal. 653, 31 Pac. 565; Bassick Min. Co. v. Schoolfield, 10 Colo. 46, 14 Pac. 65.

2 United States v. Arredondo, 6 Pet. 709, 8 L. Ed. 554.

3 Cooper v. Reynolds, 10 Wall. 316, 19 L. Ed. 932.

4 Overby v. Gordon, 177 U. S. 220, 44 L. Ed. 741, 20 Sup. Ct. 603.

5 Ex parte McCardle, 7 Wall. 514, 19 L. Ed. 265.

Nelson v. Lemmon, 10 Cal. 50; Johnson v. Sepulbeda, 5 Cal. 149; Carpentier v. City of Oakland, 30 Cal. 439; Smith v. Montoya, 3 N. Mex. 39, 1 Pac. 175; White v. Espey, 21 Or. 331, 28 Pac. 71; Estate of Eichhoff, 101 Cal. 600, 36 Pac. 11; Furgeson v. Jones, 17 Or. 204, 11 Am. St. Rep. 808, 20 Pac. 842, 3 L. R. A. 620.

7 Nicklin v Hobin, 13 Or. 406, 10 Pac. 835.

8 Russell v. Shurtleff, 28 Colo. 414, 89 Am. St. Rep. 216, 65 Pac. 27.

In re McKenzie, 180 U. S. 551, 45 L. Ed. 657, 21 Sup. Ct. 468.

§ 969. General versus limited jurisdiction.-It may be said, as a general rule, that the presumption is in favor of the jurisdiction of a court of general jurisdiction, both as to persons and property, where the want of jurisdiction does not affirmatively appear on the record.10 There are two very important limitations on this general rule, however. In the first place, the presumption in support of the jurisdiction of such courts arises only with respect to jurisdictional facts concerning which the record is silent. Secondly, the presumption is limited to jurisdiction of persons within the limits of the court's jurisdiction, and over proceedings in accordance with the course of common law.11 Thus, where a defendant is a non-resident, the burden is on the plaintiff to show the jurisdictional facts;12 and a judgment in personam against a non-resident cannot hold property within the court's jurisdiction unless attached.13

This presumption cannot be indulged in the case of courts of limited jurisdiction; in proceedings in such courts the jurisdictional facts must appear on the face of the record.14 When, however, these jurisdictional facts are made to appear of record, the same presumption as to the action of a court of limited jurisdiction will be indulged as in case of a court of general jurisdiction.15 To constitute a court of general jurisdiction as to any class of actions, its jurisdiction of such actions must be unconditional, so that the only thing essential to enable it to take cognizance of them is the acquisition of jurisdiction of the persons of the parties.16 A court that has power to hear, try, and determine all transitory actions, wherever the cause may arise, and is also a court of record proceeding according to the course of the common law, is a court of general jurisdiction.17

10 Galpin v. Page, 18 Wall. 365, 366, 21 L. Ed. 959; Nelson v. Lemmon, 10 Cal. 50; Grewell v. Henderson, 7 Cal. 290; Clark v. Sawyer, 48 Cal. 133; Hughes v. Cummings, 7 Colo. 141, 203, 2 Pac. 289, 928; Amy v. Amy, 12 Utah, 309, 42 Pac. 1121; In re Cuddy, 131 U. S. 285, 33 L. Ed. 154, 9 Sup. Ct. 703.

11 Galpin v. Page, 18 Wall. 366, 367, 21 L. Ed. 957; Settlemeier v. Sullivan, 97 U. S. 449, 24 L. Ed. 1110.

12 Belcher v. Chambers, 53 Cal. 635; Furgeson v. Jones, 17 Or. 211,

11 Am. St. Rep. 213, 20 Pac. 842, 3 L. R. A. 620.

18 Northcut v. Lemery, 8 Or. 316. 14 Den ex dem. Walker v. Turner,

9 Wheat. 548, 6 L. Ed. 157; Hornthall v. The Collector, 9 Wall. 565, 19 L. Ed. 562; McClaughery v. Deming, 186 U. S. 69, 46 L. Ed. 1049, 22 Supt. Ct. 786. 15 Miller v. United States, 11 Wall. 299, 20 L. Ed. 142.

16 Simons v. DeBare, 4 Bosw. 553. 17 Foot v. Stevens, 17 Wend. 433; DeVaughn v. DeVaughn, 19 Gratt. 556; Kempe v. Kennedy, 5 Cranch, 185, 3 L. Ed. 74.

§ 970. Limited jurisdiction-Probate.-The county court, in exercising jurisdiction in probate, is a superior court of general jurisdiction.18 Though proceedings in the county court in probate. are analogous to the practice in courts of chancery, the rule governing appeals from decrees of circuit courts does not apply to final decisions of county courts.19 The superior court, sitting in probate, has jurisdiction to determine matters raised by answer to a contest of the right to letters of administration.20

§ 971. Limited jurisdiction.-A court which has no jurisdiction. over the subject-matter of a suit, over the action itself, unless a party resides in a particular locality, or is served with process in a particular place, is a court of limited jurisdiction, within the meaning of the rule we are considering.21

Where jurisdiction is limited by the constitution or by statute, the consent of the parties cannot confer it upon the court, except when the limitation is in regard to certain persons; in the latter case, a person may, if competent, waive his exemption and confer jurisdiction.22 So, also, the agreement of the parties cannot operate to divest a court of its jurisdiction. 23 Where a court of general jurisdiction has summary powers conferred upon it which are wholly derived from statute, and not exercised according to the course of the common law, or are no part of its general jurisdiction, its decisions must be treated and regarded like those of courts of limited jurisdiction.24

§ 972. Powers of courts at chambers. As a general rule, all judicial business must be transacted in court, and there must be some warrant of statute to authorize any of it to be transacted at chambers, 25

Under the California statute,20 a justice of the supreme court may, at chambers, grant all orders and writs which are usually

18 Nolan v. Hughes (Or.), 93 Pac. 362.

19 In re Roach's Estate, 50 Or. 179, 92 Pac. 118.

20 In re Warner's Estate, 6 Cal. App. 361, 92 Pac. 191; Cal. Code Civ. Proc., § 1365.

21 In re Cuddy, 131 U. S. 284, 33 L. Ed. 154, Sup. Ct. 703; Simons v. DeBare, 4 Bosw. 553.

22 Gray v. Hawes, 8 Cal. 562; Norwood v. Kenfield, 34 Cal. 329; Bates

v. Gage, 40 Cal. 183; Black v. Clendenin, 3 Mont. 49; Hobbs v. GermanAmerican Doctors, 14 Okla. 236, 78 Pac. 356.

23 Muldrow v. Norris, 2 Cal. 74, 56 Am. Dec. 313.

24 Furgeson v. Jones, 17 Or. 204, 11 Am. St. Rep. 808, 20 Pac. 842, 3 L. R. A. 620.

25 Larco v. Casaneuava, 30 Cal. 560; Norwood v. Kenfield, 34 Cal. 332. 26 Code Civ. Proc., §§ 165, 166.

granted in the first instance on ex parte application, except writs of mandamus, certiorari, and prohibition, and may, in his discretion, hear applications to discharge such orders and writs. The superior court judges may, in addition, appoint appraisers, receive inventories and accounts to be filed, suspend the powers of executors, administrators, or guardians in the cases allowed by law. grant special letters of administration or guardianship, approve claims and bonds, and direct the issuance from the court of all writs and papers necessary in the exercise of their powers in matters of probate.

A judge at chambers has no power to make an order directing the clerk to enter in the minutes of the court, nunc pro tunc, an order alleged to have been made in open court;27 nor to make an order setting aside an execution and perpetually enjoining the enforcement of the same; 28 nor to entertain motions to strike out pleadings or parts of pleadings.29 Nor can a judge at chambers discharge a defendant in a criminal case, or dismiss an information against him.30 In Washington, a judge may render judgment in his chambers, in a case where the defendant has defaulted.31 Under the statutes of Idaho,32 a district court cannot at chambers hear a proceeding for the condemnation of lands, or enter a judgment or decree therein.33 The provision of the Oregon constitution providing for the trial of contested election cases in chambers has been upheld.34

A judge's chambers are not confined to the usual place for the transaction of business not required to be done in open court, but chamber business may be done wherever the judge may be found, within the proper jurisdiction of the court.35

§ 973. Concurrent jurisdiction.-It frequently happens that two or more courts are competent to take jurisdiction over the same parties and the same subject-matter, or that process may issue from two or more courts authorizing the seizure of the same property, and that the action of either court, if it is allowed to

27 Hegeler v. Henckell, 27 Cal. 491. 28 Bond v. Pacheco, 30 Cal. 530; Norwood v. Kenfield, 34 Cal. 332.

29 Larco v. Casineuava, 30 Cal. 560. 30 Carpenter v. Nutter, 127 Cal. 64, 59 Pac. 301.

31 Murne v. Schwabacher Bros., 2 Wash. T. 130, 3 Pac. 899.

32 Idaho Rev. Codes, §§ 3890-3910. 33 Washington etc. R. R. Co. v. Coeur d'Alene Ry. etc. Co., 3 Idaho, 263, 28 Pac. 394.

34 Cresap v. Gray, 10 Or. 348. 35 Von Schmidt v. Widber, 99 Cal. 511, 34 Pae. 109; In re Lux, 100 Cal. 593, 35 Pac. 341.

proceed, may impair the jurisdiction of the other by taking property subject to its process, or determining some question of right which the other was, at least, equally competent to determine. In order to avoid conflict between tribunals of coequal authority the rule has been formulated, and is now of universal application, that the court first acquiring jurisdiction shall be allowed to pursue it to the end, to the exclusion of any other court.

There is nothing in the nature of jurisdiction, as applied to courts, which renders it exclusive. Jurisdiction is not a right or privilege belonging to a judge, but an authority or power to do justice in a given case when it is brought before him; and the mere grant of jurisdiction to a particular court, without any words of exclusion, does not oust any other court of similar authority or power.36

The legislature cannot confer on one court the functions and powers which the constitution has conferred upon another, where that jurisdiction is exclusive.87 But if exclusive jurisdiction be not conferred upon a court by the constitution, the legislature may confer on other courts the powers and functions which the constitution has conferred on that court.38

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State courts do not have jurisdiction to enjoin one from obtaining title to public lands, or to cause him to file a relinquishment of his claim. The determination by a state court of a federal question must be made in the light of the decisions of the federal supreme court, in so far as they apply.

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§ 974. Appellate jurisdiction.-The supreme court may have appellate jurisdiction of a suit of equitable cognizance, though the amount in controversy is less than that prescribed by statute."1 But where the proceeding is in mandamus, to compel the issuance of a warrant for a certain amount, that amount must be equal to that prescribed by statute. The authority of the supreme court

36 Burns v. Smith, 21 Mont. 251, 69 Am. St. Rep. 653, 53 Pac. 742; Delafield v. Illinois, 2 Hill, 159; Courtwright v. Bear River etc. Co., 30 Cal. 573.

37 Courtwright v. Bear River etc. Co., 30 Cal. 580.

38 Perry v. Ames, 26 Cal. 372. 39 Columbia Canal Co. v. Benham, 47 Wash. 249, 125 Am. St. Rep. 901, 91 Pac. 961.

40 Spokane & B. C. Ry Co. v. Washington etc. Ry. Co., 49 Wash. 280, 95 Pac. 64.

41 Agnew v. Barto & Sons' Bank, 48 Wash. 66, 92 Pac. 885; Edward Malley Co. v. Londoner, 41 Colo. 436, 93 Pac. 488.

42 State v. Meads, 49 Wash. 468, 95 Pac. 1022.