Haywood v. Johnson

• Decision Date: 14 October 1879
• Court: Michigan Supreme Court
• Parties: NATHANIEL G. HAYWOOD v. WILLIAM R. JOHNSON and others.

2 N.W. 926

41 Mich. 598

NATHANIEL G. HAYWOOD v. WILLIAM R. JOHNSON and others.

Supreme Court of Michigan

October 14, 1879

Action against two defendants, upon a promissory note, was instituted in St. Clair county. Service was made on one defendant in that county, and upon the other in Sanilac county. None of the parties, though residents of the state resided in St. Clair county. Held, that the action was not well brought, and where plaintiff had not objected, and had suffered no prejudice, the objection to the jurisdiction might be made by motion on affidavits.

Elliott G. Stevenson, for plaintiff in error.

Divine & Wixon, for defendant in error.

GRAVES J.

Haywood brought this action in the county of St. Clair, to recover against the defendants on their joint promissory note. It was commenced by declaration, and the service was made on Johnson in that county, and two days later on Wixon in Sanilac county. All the parties were residents of the state, but non-residents of St. Clair county. Wixon, claiming that the suit was not well brought, in consequence of such non-residence, and of the fact that service was made on him in another county, moved the court to set aside the proceedings, and the court set them aside so far as they related to him.

The plaintiff objects to the decision on two grounds: First, that the second clause of section 5970 Comp.Laws, prescribes the place of trial, but does not confine the commencement of transitory actions to any place and that there is no law that does so; that such actions may be brought in any county in which a joint defendant can be found and served, and that after such service any other joint defendants may be brought in and subjected to the jurisdiction by means of service upon them anywhere in the state. Section 5748, as amended in 1873; Gen.Laws 1873, p. 471. That in case an issue of fact is raised for trial, the provisions which prescribe in what county the issue must be tried may be carried out, and the intent be complied with, by a removal of the action to some county "where one of the parties" resided when it was commenced, (� 5970, 2d clause;) and that, subject to the chance of an issue of fact coming up to cause a transfer to a county where one of the parties resided "at the time of commencing such action," the suit may be brought in any county where a defendant can be found.

The laying the action, or giving service in cases transitory, proceeds upon the idea that the plaintiff ought to specify a county wherein a jury may be had, and the cause be tried on the merits, under an issue of fact, in case one is arrived at, and I have never supposed the theory to be compatible with the bringing of a suit in some county in which the law has already said it cannot be so tried. My own understanding has always been that the law intended that transitory actions should be brought in those counties only where the court would be entitled to try and decide them upon the merits, and that no circuit court had been given the qualified jurisdiction of a tribunal entitled only to begin cases and then remove them, in order to preserve them in life, and place them where it would be lawful to try and complete them.

This opinion remains unchanged, and it accords with what has been the inclination of the court. Barnard v. Hinckley, 10 Mich. 468; Detroit F. & M. Iron Co. v. Judge of Saginaw Circuit Court, 23 Mich. 492.

There are many considerations which weigh against the view that any such practice as thus contended for has been authorized. Some of them may be suggested.

If the construction urged is sound, it applies as well to ejectments and all actions concerning real property as to actions transitory in their nature, and equally to suits commenced by capias as to those commenced by summons or declarations.

The statute (see the first seven sections of chapter 103, Rev.St.1846) assumes to define what shall be the law of locality of the different kinds of action, and the same expression is used in the provision relating to real actions, and others concerning real estate, as in that relating to actions on contract and others of a mere personal nature. They are required to be "tried" in the proper county, but nothing is said in terms as to any necessity for their commencement in any special place, as in the other provision the express instruction relates only to the place of trial; and in Campau v. Dewey it was held by this court that the provision in the same statute for changing venue was just as applicable to the actions relating to real estate as to any others. 9 Mich. 381. The actions in the two subdivisions of � 5970 stand, therefore, on the same ground in regard to the right claimed.

In the one class the action is to be "tried" in the county where one of the parties shall reside at the time of commencing such action, "and in the other the action is to be tried in the county where the subject of the action should be situated;" and there is the same power to change the venue in actions of the one class as in those of the other. If, as between inhabitants of the state, it is regular practice under the language of the statute to bring an action on contract in a county where neither party resides, then it must be equally regular, as between such persons, to bring ejectment in a county other than that in which the land is situated. But the reasons are very strong against the supposition that it has been intended to allow such actions to be brought without any regard to locality. They must readily occur to the profession. Then, in regard to suits by capias, where the defendant may be arrested and committed in default of bail, in this state, at least, the policy of the law has not been supposed to countenance any practice obviously favoring an oppressive use of process; and surely nothing could afford greater facility for it than a right to cause one to be arrested in a civil matter in any county in which he might happen to be found, or through which he might happen to be passing, however remote from his residence and acquaintance, and where his only practicable alternatives might be an imprisonment or immediate submission to oppressive and wicked exactions.

Indeed, it is very easy to see that a door would be opened for the perpetration of erroneous abuses under color of "due process of law."

Moreover, the principle would extend to cases against all sorts of public officers. The sheriff would not be exempt. He would be exposed to arrest and confinement in foreign counties.

Without dwelling on this idea it is enough to add that no one can trace the consequences of such a practice, and contrast them with various regulations scattered through the statutes, without seeing their inconsistency and want of propriety.

Finally the legislature have distinctly indicated their sense that, under the provisions requiring actions to be "tried" in particular counties, and permitting a change of venue, it was not competent to make a beginning in a county not so designated as the county...