Harriott a. The New Jersey Railroad Company. In Whitmore a. Johnson's heirs (10 Humph., 610), the rule is explicitly admitted, that if a decree is in itself sufficiently comprehensive to show what was adjudged, and jurisdiction, it would suffice without producing the bill and answer. These were recited, but not in detail. The defect was, that the decree did not show that personal estate was exhausted, which was a statutory prerequisite to a sale of real estate, by the tribunal which had ordered such sale. When the fact of jurisdiction is made out, every intendment of regularity is made to support a judgment or decree, and regularity of proceedings. (12 Wend., 40.) Particularly is this the case when the decree is proffered to be used against a party who was a party to the suit itself, and when he himself can immediately contradict its recitals, even by his own oath. It was decided by the King's Bench in Ashworth a. Kempe (Doug., 49), that a writ of execution is evidence of a judgment as to the party to the action in which it is given. HARRIOTT a. THE NEW JERSEY RAILROAD New York Common Pleas; General Term, November, 1858. JURISDICTION OF NEW YORK COMMON PLEAS.-JUDGMENT FOR COSTS. To enable a non-resident plaintiff to maintain an action in the New York Common Pleas against a foreign corporation, it must appear either, 1. That the action is upon a contract made, executed, or, delivered in this State; or, 2. That the cause of action arose in this State; or, 3. That the subject of the action is situated in this State. The defendant does not, by appearing and answering, waive the objection that none of such grounds of jurisdiction exist. Where an action is dismissed on the ground that the court have no jurisdiction,— e. g., by reason of the non-residence of the plaintiff,—but the question of jurisdiction was not raised by the issues in the action, nor presented to be tried on Harriott a. The New Jersey Railroad Company. affidavits, but settled by an admission of the party, in open court, judgment for costs, on dismissing the complaint, cannot be rendered.* An appeal to the general term, from an order made at the special term, dismissing an action in such case, does not confer a new jurisdiction within the rule that an appellate court may grant costs on an appeal from a judgment of an inferior court on the ground of want of jurisdiction. I. November, 1858.-Appeal from a judgment dismissing the complaint. The action was brought by the plaintiff to recover from the defendants damages for negligently and carelessly killing the plaintiff's horse, in the State of New Jersey. The plaintiff was not a resident of this State; but this fact did not appear in the pleadings. After issue, and before trial, the defendants obtained an order that plaintiff file security for costs, upon the ground that he was a non-resident. On the trial of the cause, the counsel of the plaintiff's stated, in the opening, that the plaintiff was a non-resident, whereupon the defendants' counsel moved to dismiss the complaint, on the ground that the court had no jurisdiction. In order to have the question passed on before proceeding to trial, the parties went before the general term, where the question was presented; counsel agreeing that a judgment of nonsuit should afterwards be entered at special term, and with exception, so as to present a formal appeal. The question was accordingly argued at general term, and the judgment at special term was subsequently entered. The appeal taken by the plaintiff was to the judgment of nonsuit as a whole, but took no separate exception to that part of it which allowed costs. BY THE COURT.+-BRADY, J.-The Code, by section 33, subdivision 3, defines the jurisdiction of the Court of Common Pleas over actions against foreign corporations, and confers it only where the action is for a debt or damages, whether liquidated or not, arising upon contract made, executed, or delivered in this State, or where the cause of action arises therein. Section 427 provides that an action may be commenced in the Supreme Court, the Superior Court of the City of New York, and in the Court of Common Pleas for the City and County of New York, Compare McMahon a. The Mutual Benefit Life Insurance Company (post 297). Harriott a. The New Jersey Railroad Company. by a resident of this State, for any cause of action; and by a plaintiff not a resident, when the cause of action shall arise, or the subject of the action shall be situate within this State. To enable a non-resident plaintiff to mantain an action, therefore, in this court, against a foreign corporation, one of three requisites, at least, must appear: 1. That the action is upon a contract made, executed, or delivered in this State; or, 2. That the cause of action shall have arisen in this State; or, 3. That the subject of the action shall be situate within this State. Here none of these requisites exist. The plaintiff is a non-resident, and the cause of action arose in the State of New Jersey. He has, therefore, no status in this court, and his action cannot be entertained. It was urged on the argument, that the defendants having appeared and answered, without raising any objections to the jurisdiction of this court, and this court having jurisdiction of cases brought to recover damages for injuries done by railroad companies, the question was one which related to the person, and not to the subject matter. The answer to this proposition is, that the statute has declared, in effect, that this court shall not have jurisdiction of such actions against a foreign corporation unless the plaintiff resides in this State, or the cause of action arose therein. It has jurisdiction of all actions between individuals for injuries inflicted, without regard to the residence, when the defendant is personally served with process within the city of New York, but against foreign corporations only in the cases specified. The objection, therefore, urged by the defendants does not present a question of jurisdiction over the person. We have decided that a defendant, by appearing and pleading to the merits, waives all objections of jurisdiction to the person, but not to the subject-matter. (Hogan a. Baker, 2 E. D. Smith, 22; Palding a. Hudson Railroad Company, Ib. 38.) And the Court of Appeals have decided that no assent by the parties can confer jurisdiction, or render the judgment of a tribunal effectual, in a matter over which it has not, by law, jurisdiction. (Dudley a. Mayhew, 3 Comst., 12; Binckle a. Eckhart, Ib., 132; see also Coffin a. Tracy, 3 Cai., 129; Daws a. Packard, 7 Pet. 276; United States a. Yale, 6 How. (U. S.) R., 605 ; United States a. Carnes, Ib., 106.) Harriott a. The New Jersey Railroad Company. In Dudley a. Mayhew (supra), the objection to the jurisdiction was first interposed by plea, but subsequently withdrawn, and a stipulation given not to raise it further; but as consent could not give jurisdiction, the decree of the chancellor was reversed. The judgment should be affirmed. II. February, 1859.-Motion to vacate judgment. After the decision affirming the dismissal of the complaint, the defendants entered judgment for costs of the appeal. The plaintiff, upon an affidavit stating that he was a non-resident, and reciting the foregoing proceedings in the cause and that he was advised that the judgments for costs were void, and upon the judgment-rolls and the opinion of the court, moved, at special term, to set aside and vacate the judgments, on the ground that they were void. J. W. Gerard, for the motion. This court having decided that they had nothing to do with this cause, having no jurisdiction over the subject-matter, which decision was not the result of the trial of any issue in fact or in law, this court cannot award a judgment for costs to the defendant. They either have nothing to do with it, or they have. If they have, they should have tried it; if not, then they can make no judgment for a recovery, either by the one party or the other. The court will bear in mind that the defendants submitted to the jurisdiction by appearing generally and answering to the merits, without taking the ground of want of jurisdiction in their answer and forming an issue thereon, but going to trial before the court and jury, and taking the risk of getting a verdict on the merits; but the jury disagreeing, there was no verdict, although it appeared on the first trial that the plaintiff was a nonresident; and the ground was never suggested until the second trial--the one in question. The defendants also knew it before the first trial, for on that ground they moved for security for costs. I. Where a court has no jurisdiction over the subject matter, which cannot be waived even by consent, they can make no judgment in the cause for costs in favor of the defendants agains. the plaintiffs. Such is the general rule at common law, although there always was a statute fee-bill, as now, and the Code has Harriott a. The New Jersey Railroad Company. not altered the common law in that respect. (9 Johns., 239; 6 Wend., 465.) In 2 Rev. Laws of 1813, § 103 of the act relating to justices' courts in the city of New York, where a plaintiff brings his suit in the wrong ward, the justice shall dismiss the case, with costs, the same as if nonsuited on the merits. This shows that, without such express legislation, no costs could be allowed. II. Has the Code given costs in such a case? Before the court awards them it must appear, beyond all doubt, that the codifiers have done so. Sections 304 and 305 of the Code only apply to the trial of causes on the issues framed, either of fact or of law. Those sections apply to trials, not where there is no trial; and their construction must depend upon other sections, with which they are in connection. Section 304 says the plaintiff shall have costs in case of a recovery by him, meaning an actual recovery on the trial of an issue in law or in fact; but not where there has been no trial, and where there could be no recovery; and section 405 gives costs to the defendant, of course, only where the defendant, after having had a chance, by trial, of recovering on an issue of fact or law, fails to recover on the merits of some issue. Sections 248, 249, and 250 show that no issue was joined in this case, either of law or fact, upon the ground on which the judge refused to try the cause. Section 252 shows that there was no trial in this case, as that section defines a trial to be "a judicial examination of the issues between the parties, whether they be of law or fact." Section 245: "A judgment is the final determination of the rights of the parties in the action,"-meaning on the merits, as declared by issues. There can be no judgment where there is no trial. There may be an order, not a judgment. Here this court and the judge on the trial may direct an order to be entered, by the clerk, on the minutes, that they have no jurisdiction, and that they dismiss the complaint therefor, and that is all. A judgment-roll for the defendants would debar the plaintiff from bringing a suit in New Jersey against the defendants. By section 144, the defendant may form an issue at law on the question of jurisdiction, where it appears on the face of the complaint, by demurrer. By section 147, objections to the jurisdiction may be taken by answer, where it does not appear on the face of the complaint, thus forming an issue in fact. By section 148, omitting to demur or |