Webb v. Goddard , 46 Me. 505 ( 1859 )

The opinion of the Court'was drawn up by

Tenney, C. J.

Neither of the parties to this suit had his residence in the county of Piscataquis, and the plaintiff resided out of the State, as appears by the writ, which was returnable therein. The action was entered at the September term, 1856, and at a subsequent term, the defendant Russell was defaulted, and Goddard, the other defendant, moved that the writ abate and the action be dismissed, on the ground that it was brought in the wrong county. The motion was overruled, and the action continued from term to term, till September term, 1858, when Goddard was defaulted, on the first day thereof, and, on the seventh day of the same term, he moved that the default be taken off, in order that he might file a motion that the action abate, which motion was denied. Thereupon a motion in arrest of judgment for the same cause was filed and overruled. To these rulings and refusals, exceptions were taken by the defendant Goddard.

The action was erroneously brought in the county of Piscataquis. Statute of 1856, c. 228, § 1, requires that, when the plaintiff is not an inhabitant of the State, all personal and transitory actions, excepting process of foreign attachment, shall be brought in the county where the defendants, or one of them, resides. The same provision is found in E. S. of 1857, c. 81, § 2, and when not so brought, on motion or inspection of the Court, they shall be abated, and the defendant allowed double costs.

It is not insisted, in defence, that a general appearance for the defendant Goddard was not entered at the first term; and, from the fact that the action was continued for several terms, we infer that an unqualified appearance was entered for him upon the docket at that time. No plea in abatement was filed, and no motion to abate the writ and dismiss the action, till the second term, was made. It is hence insisted, by the plaintiff, .that the irregularity was waived. On the other hand, the defendant contends that there was a total want of jurisdiction in the Court, sitting in the county of Piscataquis, of the suit, and that the objection may be taken at any time before judgment.

Transitory actions are broadly distinguished from those which are local in their nature; and statutes, prescribing the counties in which the former may be brought and tried, do not in the least change their legal character; but over such the Court has jurisdiction in any county in which they are commenced. Martyn v. Fabrigas, Cowper, 161 and 176; Brown v. Webber, 6 Cush., 560. But it is otherwise in those, which are in their nature local. Robinson v. Mead, 7 Mass., 353; Hathorne v. Haines, 1 Greenl., 238; Blake v. Freeman, 13 Maine, 130.

“Where the objection is that the Court never had any authority to issue any process, or any jurisdiction over the subject or the parties, the proceeding is void.” Elder v. Dwight Man. Co., 4 Gray, 201. “But matters of form, which do not affect the merits of the controversy, nor the regular and fair administration of justice, are held to be waived, if not excepted to at an early stage of the case.” Richardson v. Welcome, 6 Cush., 331.

By the statute of Massachusetts, c. 28, § 13, passed Oct. 30, 1784, it is provided that, “when the plaintiff and defendant both live within the Commonwealth, all personal or transitory actions shall be brought within the county where one of the parties lives. And when an action shall be commenced in any other county, than as above directed, the writ shall abate, and the defendant be allowed double costs.” In the case of Cleaveland v. Welch, 4 Mass., 591, the Court, referring to this provision, say, “This remedy was given to the defendant. He may, consequently, waive it. And he must be considered as waiving it, unless he seek it by plea in abatement to the writ. For the exception is. not to the jurisdiction, &c., but is to the writ, as sued out and returned in the wrong county.”

In the case of Brown v. Webber and trustee, 6 Cush. 560, after a review of authorities upon the subject, which is similar in principle to the question now before us, Shaw, C. J., says, “ The result is, that where the Court has a jurisdiction of the cause and subject, as in transitory actions, where the jurisdiction is not limited by statute; and where they hold also jurisdiction of the persons, either by being rightly served with process, returned in the right county, as designated by the statutes, or where they have taken jurisdiction of the persons, by their submission to the jurisdiction, no exception can be taken to the rendering of a valid judgment; and that a defendant does waive all exceptions to irregularity, including the fact that the process is made returnable in the wrong county, by a general appearance and plea or answer to the merits.” An omission to make a motion to dismiss the action at an early stage, in such case, is regarded as a waiver of the objection. Jayner v. Third School District in Egremont, 3 Cush., 574.

The suit before us is assumpsit, and is a transitory action. The writ was made in the wrong county. The defendant omitted to plead in abatement, or to move a dismissal of the action, till the time prescribed by the rules of this Court had elapsed. Rules of Court, 37 Maine, 569. He thereby waived the privilege conferred by the statute.

Exceptions overruled.

Appleton, Cutting, Mat, Davis and Kent, J. J., concurred.