Page:Dakota Territory Reports Vol 4.djvu/321

308

1..

A writ of certiorari cannot be granted and a review had by this court of proceedings had in the district court, so long as such proceedings remain undisposed of, and not finally determined in that court.

Writ of certiorari to the district court of Sixth judicial district, and, Judge.

Dodge & Camp and Nickeus & Baldwin, for plaintiffs.

A special appearance to object to the jurisdiction of the court, does not waive service of summons. Newlove v. Woodward, 4 N. W. Rep. 237; 5 N. W. Rep. 1034; Schwab v. Mabley, 11 N. W. Rep. 294.

"The appointment of receivers in equity takes the place of attachment proceedings at law." Todd v. Lee et al. 15 Wis. 365.

An order appointing a receiver, where no action is pending, is absolutely void. Jones v. Shall, 8 N. W. Rep. 68.

Merchants and Manufacturers Bank v. Kent, 5 N. W. Rep. 627; Maynard v. Railey, 2 Nev. 313; Curtis v. Leavitt, 1 Abb. Pr. 274; 10 How. Pr. 481; Fellows v. Herman; 13 Abb. Pr. (U. S.) 1; High on Receivers, Sec. 23; Cattenstroth v. Astor Bank, 2 Duer 632; McArtey v. Peake, 9 Abb. 164; Case of French Bank, 53 Cal. 533.

Where suit is instituted in a court without jurisdiction and the court is afterward invested with jurisdiction in the case, this subsequent investure does not cure the prior defect, since, without jurisdiction, all acts are not voidable but void absolutely. Mora v. Kusac, 12 La. 754.

Certiorari is the proper remedy in such cases, the matter not being reviewable on appeal. Commonwealth v. Blue Hill Turnpike, 5 Mass. 420; Hawthorne v. McGuire, 1 Harr. (Del.) 530; State v. Thompson, 2 N. H. 237; Starr v. Trustees of Rochester, 6 Wend. 564; Cowen's Case, 1 Overt. 311; State v. Pownall, 10 Me. 24; State v. Huntington, 1 Treadw. (S. C.) 325.