Johnston v. Higgins , 15 Minn. 486 ( 1870 )

Berry, J.

By the Court While this action was pending in the district court for Wabasha county,'in the third judicial district, the defendant gave the plaintiff notice of a motion to vacate the attachment issued therein — such motion to be made and heard before the judge of the first judicial district, at his office in Red Wing, in the county of Goodhue, &c. &c. The plaintiff appeared before said judge at the time and place designated, and objected to the hearing of the motion, upon the ground that it did not appear by any showing, that said judge had jurisdiction to entertain the same, under see. 1, ch. 67, Laws 1867, nor that the motion was made in time under sec. 3, ch. 66, Laws 1867.

Sec. 4, Ch. 67, Laws 1867 provides that “motions must be made in the district in which the action is pending, or in an adjoining district, provided, that no motion shall be made in an adjoining district, which shall require the hearing of such a motion at a greater distance from the county seat where the action is pending, in which such motion is made, than the residence of the judge of the district wherein such action is pending from such county seat. It will be observed that under this statute it is thefaet in reference to distance which gives jurisdiction to the judge of the adjoining district, and that neither such jurisdiction, nor its exercise, are made to depend uponjwo/lof such fact.

The motion although in terms made before the judge, must be held to have been addressed to the court. See Sec. 140, Ch. 66, Gen. Stat. Ch. 90, Laws 1868. Yale vs. Edgerton, 11 Minn. 274; and as our district courts are superior courts, the presumption is that the authority which they exercise in any particular case is within their jurisdiction, if it might have been within the same. Holmes vs. Campbell, 12 Minn. 226. This presumption is not overcome in this case by any showing to the contrary. The plaintiff’s objections to the hearing were not then well taken. See Newcomb vs. Reed, 14 How. Pr. R. 100. As to the merits, it is only necsssary to add, that there is such a conflict between the affidavits read for,'and against the motion, that we are unable to say that the court below erred in • vacating the attachment. These conclusions render it unnecessaiy to consider the points made as to the form of the affidavit for attachments, and as to the stipulation. .

Order affirmed.