Atkins v. Boerstler

• Decision Date: 05 October 1881
• Citation: 9 N.W. 850,46 Mich. 552
• Court: Michigan Supreme Court
• Parties: ATKINS v. BOERSTLER.

9 N.W. 850

46 Mich. 552

ATKINS v. BOERSTLER.

Supreme Court of Michigan

October 5, 1881

Transitory actions upon contracts can be brought against non-residents of the state in any county where service can be obtained upon them.

The constitution gives jurisdiction to the circuit courts over transitory actions upon contracts, against non-residents of the state; and this jurisdiction cannot be taken away by any legislation limiting the forum of the action to the county in which the plaintiff resides.

The statute (Comp.Laws, � 5970) in requiring transitory actions to be tried in the county where one of the parties shall reside at the time of bringing suit, is meant to save resident defendants from vexatious suits in places remote from their homes, and not to protect non-residents of the state from being sued at all if they cannot be found in the plaintiff's county.

Error to Kent.

Hughes, O'Brien & Smiley, for plaintiff.

Champlin & Moore, for defendants.

CAMPBELL J.

Plaintiff who resides in Mecosta county, sued defendants, who reside in another state, on contract, the suit being brought in Kent county and service made there. Defendants pleaded in abatement showing their non-residence and that of plaintiff and claiming that under our statutes they could only be sued in Mecosta. On demurrer this plea was sustained, and plaintiff brings error.

It was held in Haywood v. Johnson, 41 Mich. 598, that a resident of the state could not be sued in a transitory action in a county where neither party resided. It was held in Turrill v. Walker, 4 Mich. 177, that the circuit courts could get no jurisdiction unless one defendant is served in the county. It results from these decisions that a suit in Mecosta county would have been fruitless unless a defendant should be found there, and that unless a suit can be brought where a non-resident defendant is found, he cannot be sued at all, in many cases, and could not have been in this case.

Reliance is had by defendants on section 5970 of the Compiled Laws of 1871, which requires transitory actions to be tried in the county "where one of the parties shall reside at the time of commencing such action." This was held in Haywood v. Johnson, to require suits to be commenced in such county. And if the section applies to non-residents of the state, the decision below was correct. But if correct it follows that there are many transitory actions on contract, as well as in tort, where such persons can always evade the justice of this state by keeping away from counties where their creditors reside. The constitution...