Brisco v. Brewer

— In determining the question, raised by the demurrer, it is not necessary to consider the constitutionality of that part of the Statute of 1811, which gives jurisdiction to the Justice’s Court, in cases where the demand originally exceeded their jurisdiction, and which had been liquidated and divided, into sums within their jurisdiction. The constitutionality of that part of the Statute has been denied by complainants counsel, with much earnestness, in the argument ; but the demurrer must be sustained, on other grounds.

The want of jurisdiction, in the Justice’s Court, and the constitutionality of the Statute, referred to, might have been enquired of, and determined, at the trial in the Justice’s Court, and all further adjudication of that matter must be considered as concluded, by the judgment.

The plea to the jurisdiction is a personal right; and I know of no legal principle, by which the creditors of the defendant can set aside a judgment, on the ground that he failed to plead to the jurisdiction of the Court, which rendered the judgment. We might as well be called on, to set aside a judgment, on the application of creditors, on the ground that the defendant tailed to plead usury, or infancy, or the Statute limitations, &e.

The demurrer must therefore be sustained, and the bill dismissed.