FEBRUARY TERM, 1804.
Harper, for the plaintiff in error, stated the only question to be whether the plaintiff had a right to assign for error, the want of jurisdiction in that Court to which he had chosen to resort.
ERROR to the Circuit Court of North-Carolina. The proceedings stated Van Noorden to be late of Pitt county, but did not allege Capron, the plaintiff, to be an alien, nor a citizen of any state, nor the place of his residence.
Upon the general issue, in an action of trespass on the case, a verdict was found for the defendant, Van Noorden, upon which judgment was rendered.
The writ of Error was sued out by Capron, the plaintiff below, who assigned for error, among other things, first "That the circuit court aforesaid is a court "of limited jurisdiction, and that by the record aforesaid "it doth not appear, as it ought to have done, that "either the said George Capron, or the said Hadrianus " Van Noorden was an alien at the time of the commencement "of said suit, or at any other time, or that one of "the said parties was at that or any other time, a citizen "of the state of North-Carolina where the suit was "brought, and the other a citizen of another state; or "that they the said George and Hadrianus were for "any cause whatever, persons within the jurisdiction of "the said court, and capable of suing and being sued "there."
And secondly, "That by the record aforesaid it manifestly "appeareth that the said Circuit Court had not "any jurisdiction of the cause aforesaid, nor ought to "have held plea thereof, or given judgment therein, but "ought to have dismissed the same, whereas the said "Court hath proceeded to final judgment therein."
It is true, as a general rule, that a man cannot reverse a judgment for error in process or delay, unless he can shew that the error was to his disadvantage; but it is also a rule, that he may reverse a judgment for an error of the Court, even though it be for his advantage. As if a verdict be found for the debt, damages, and costs; and the judgment be only for the debt and damages, the defendant may assign for error that the judgment was not also for costs, although the error is for his advantage.
Here it was the duty of the Court to see that they had jurisdiction, for the consent of parties could not give it.
It is therefore an error of the Court, and the plaintiff has a right to take advantage of it. 2 Bac. Ab. Tit. Error. (K. 4.) — 8 Co. 59. (a) Beecher's case. — 1 Roll. Ab. 759. — Moor 692. — 1 Lev. 289. Bernard v. Bernard.
The defendant in error did not appear, but the citation having been duly served, the judgment was reversed.