all motions, including motions to quash the writ, to amend the pleadings, for extensions of time, for continuances; for bonds, for prosecution, for bills of particulars; pleas stricken from the files, notices of motions, affidavits in relation to conduct of jurors; all affidavits taken during the progress of the cause, memorandum of costs; power of attorney to confess the judgment, and affidavit in relation to the death of the maker thereof; report of judge of proceedings at the trial, reasons for his opinion in rendering judgment or in deciding application for a new trial; rulings of the court upon the admission of evidence; the instructions to the jury; statement of facts made by the judge for the purpose of taking the advice of the appellate court; and the ruling of the court upon an application to strike out a portion of the pleadings.'

On review from the district court the opinion of that court is part of the statutory record (appeal record).

These rules lie at the very foundation of appellate practice, and should be thoroughly mastered by every lawyer, in order to save valuable rights entrusted to his care, as well as frequent humiliation.

27. Loss of jurisdiction by extra-judicial judg ment. It is a general rule that the judgment must be responsive to the issues. Though full and complete jurisdiction over subject matter and person exist, a judgment wholly unauthorized is void, however attacked. Instances of such cases are imprisonment where a fine alone is authorized, a decree for specific performance where damages only are author

28 United States v. Taylor, 147 U. S. 695, 13 Sup. Ct. 479, 37 L. Ed. 335. See Loeb v. Columbia Township Trustees, 179 U. S. 472.

ized, and the taking in condemnation of a greater interest than the statute allows.27

A judgment without the issues made by the pleadings is collaterally void.28

28. Jurisdiction and venue.-Venue has now come to mean the place of trial of an action, the place where the jurisdiction should be exercised. Venue is always subject to waiver in transitory, but not in local suits, where venue and jurisdiction are synonymous. Venue and jurisdiction have sometimes been confused by able judges, as by Justice Miller in Smith v. Lyon,29 and by Chief Justice Fuller in Ex parte Wisner.30 The misapprehension was corrected in the case of In re Moore.31 Laws generally prescribing where suit shall be brought do not apply to local suits, unless expressly so provided.32 Such suits are properly brought only where the property affected is situated, or where the cause of action arises.33 Crimes are local in their nature,34 except those against the United States which are committed without state limits.55 Crimes committed partly in one district and partly in another may be tried in

27 Field, J., dissenting, in Tyler v. Defrees, 11 Wall. 331 (U. S.), 20 L. Ed. 161. A judgment on a matter outside the issues is void, because it concludes a point on which the parties have not been heard. Munday v. Vail, 34 N. J. Law 418; Reynolds v. Stockton, 43 N. J. Eq. 211, 10 Atl. 385, affirmed 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914.

28 Van Fleet, Collateral Attack (1st ed.), §§ 747-756. 29 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635.

30 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264.

31 209 U. S. 490, 28 Sup. Ct. 585, 52 L. Ed. 904, per Brewer, Justice.

32 Casey v. Adams, 102 U. S. 66, 26 L. Ed. 52.

33 Massie v. Watts, 6 Cranch 148 (U. S.), 3 L. Ed. 181.

34 United States v. Dawson, 15 How. 467, 487 (U. S.), 14 L. Ed. 775.

35 Jones v. United States, 137 U. S. 202, 211, 11 Sup. Ct. 80, 34 L. Ed. 691.

either.36 Criminal suits being local, there is question whether the fact of the crime having been committed in the district or county where the court sits is a fact strictly or only quasi-jurisdictional. In England it was held that the jurisdiction depended on the allegation that the crime was committed in the county where trial was had," while in Massachusetts a judgment against a justice of the peace was sustained where it appeared that the offense was not committed within his territorial jurisdiction, although otherwise alleged.38 Transitory suits may lie in any county in England, though the matter arises beyond seas.39 The same rule applies generally in the United States.40 Personal or transitory actions in which an attachment, foreign attachment or garnishment is served against property in the jurisdiction of the court, may be brought, as a general rule, where the property or credit attached is situated.11 But an attachment suit in the federal courts must be brought in the district prescribed by law for the bringing of personal actions,42 unless the suit is against an alien, in which case there is no statutory provision.43

29. Concurrent and conflicting jurisdiction.— Conflicts of jurisdiction frequently arise between different courts, generally between courts having con36 Putnam v. United States, 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118.

37 In re Newton, 16 Com. Bench 97.

38 Piper v. Pearson, 2 Gray 120 (Mass.), 61 Am. Dec. 438.

39 McKenna v. Fisk, 1 How. 241, 248 (U. S.), 11 L. Ed. 117.

40 Dennick v. R. R. Co., 103 U. S. 11, 26 L. Ed. 439.

41 Clark v. Wells, 203 U. S. 164, 27 Sup. Ct. 43, 51 L. Ed. 138.

42 Big Vein Coal Co. v. Read, 229 U. S. 31, 33 Sup. Ct. 694.

43 Barrows S. S. Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964.

current jurisdiction. The same cause of action may be brought before two or more courts of the same state or government, or of different governments, and the same defendant be thus required to defend in each court. In such cases neither court will attempt directly to restrain the other; but the court which last assumed jurisdiction will generally, out of comity to the court whose power was first invoked, stay further proceedings in the case before itself.** The defendant may also have an injunction issued against plaintiff, restraining him from further proceedings in the second or later suit.45 This does not bind the court in which the latter suit is pending, but indirectly stops such further proceedings by acting on the party.

"The general power of courts of equity whose jurisdiction has once attached, to restrain parties from commencing and prosecuting actions in other courts for the same object, is unquestioned.

*

The defendant will be restrained at the instance of the plaintiff, and vice versa. The forum or jurisdiction in which the subsequent proceedings are taken, whether domestic or foreign, is immaterial. The injunction goes against the party, and not against the court or officer." 46

A similar rule applies to the seizure of property by judicial process. Such a seizure gives the court

44 22 Cyc. 787.

45 Same.

46 Akerly v. Vilas, 15 Wis. 401, 412; Dietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497. Injunction against defendant against prosecuting a later suit against plaintiff in England. Gage v. Riverside Trust Co., 86 Fed. 984. A leading case is Peck v. Jenness, 7 How. 612 (U. S.), 12 L. Ed. 841.

jurisdiction to deal with and dispose of the property to the exclusion of all other courts.47 This rule is essential to the orderly administration of justice, and applies not only to cases where a court first acquiring jurisdiction makes a prior seizure, but to those where seizure is after that by another court in a suit afterwards begun.48 Courts have no power to obstruct the process of other courts. State courts have sometimes attempted to restrain municipal officers from levying taxes to pay judgments rendered by federal courts on municipal bonds, but such efforts have always failed. The restraint was attempted to be imposed on the ground that the state courts had decided the bonds to be void.49 Under the rules here referred to, prior jurisdiction is not obtained until process is actually served.50

In respect to cases within the exclusive jurisdiction of courts, such as admiralty, difficult questions of conflicting power have arisen. An attachment

may issue against property, in a case fully within the jurisdiction of the court, and a later seizure in rem may be attempted in a court of admiralty, to enforce prior liens exceeding the value of the property. While it is held that the admiralty court cannot take the property out of the custody of the state court, nor restrain the attachment proceedings, it may,

47 Ex parte Chetwood, 165 U. S. 443, 460, 17 Sup. Ct. 385, 41 L. Ed. 782. 48 Farmers' L. & T. Co. v. Lake St. El. R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667.

49 Holt County v. National Life Ins. Co., 80 Fed. 686, 25 C. C. A. 469; Central Nat. Bank v. Stevens, 169 U. S. 432, 18 Sup. Ct. 403, 837, 42 L. Ed. 97, 807; same case, 171 U. S. 108, 18 Sup. Ct. 837, 43 L. Ed. 97.

50 Gaylord v. Fort Wayne, etc., R. Co., 6 Biss. 286 (U. S.), approved in Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981.