Opinion
Submitted February 13, 1931 —
Decided October 19, 1931.
1. The lack of jurisdiction over a cause of action can never be waived.
2. When it is clear that the legislature intended to say "judicial district" instead of "judicial court" in a statute, the courts will not be governed by the obvious error.
On appeal from the Supreme Court, whose per curiam opinion is printed in 8 N.J. Mis. R. 623.
For the appellant, Edward A. Markley and Charles W. Broadhurst.
For the respondent, Feder Rinzler.
We concur in the view expressed by the Supreme Court, that the record does not disclose facts which would bring into operation the statutes relied on by counsel as affecting the jurisdiction of the justices' court over the subject-matter.
The final paragraph of the per curiam seems to indicate that the Supreme Court relied also on the fact that the jurisdictional point was not raised at the trial as being a waiver of that point. But the rule is of course settled that lack of jurisdiction over the cause of action is not the subject of waiver. Collins v. Keller, 58 N.J.L. 429; Dubelbeiss v. West Hoboken, 81 Id. 98, 101; affirmed, 82 Id. 683, 685.
For the reason first stated by the Supreme Court, the judgment under review will be affirmed.
The per curiam as reported in 8 N.J. Mis. R. contains a clause on page 624 based upon the statute which reads: "Any city or judicial court where a District Court is established," c. This language is correctly taken from the statute of 1921 but that statute obviously used the wrong word and it is clear that the legislature intended to say "judicial district" instead of "judicial court;" in other words, to re-enact section 31 of the act of 1898 with the addition of the proviso that appears in the amendment of 1921.
For affirmance — THE CHIEF JUSTICE, PARKER, CAMPBELL, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 11.
For reversal — None.