Cofrode v. Gartner , 7 L.R.A. 511 ( 1890 )

Ohamplin, C. J.

On December 7, 1889, the relators commenced suit in the circuit court for the county of Wayne by filing a declaration against Walston H. Brown, Columbus B. Cummings, Samuel Thomas, and Wjlliam B. Howard. On December 16, 1889, defendants appeared in said cause by their attorneys, and demanded a bill of particulars, which was furnished on the same day. The •defendants also pleaded the general issue, with notice of recoupment, of which they furnished a bill of particulars. After the cause was at issue it was regularly noticed for trial by the plaintiffs5 attorneys, aud placed upon the docket for trial by jury at the January term of said court. On December 23, 1889, the defendants filed an affidavit in support of a motion for a struck jury, which came on to be heard on January 7, 1890, before Hon. George Gartner, circuit judge for the county of Wayne. The plaintiffs opposed the motion, and filed an affidavit in opposition thereto. The motion was submitted to -the court, and without deciding it the said circuit judge on January 13, 1890, of his own motion made an order striking the case from the docket on the ground that all the parties to the suit were non-residents; a copy of which order is as follows: ■ ■

The application for a struck jury heretofore made in this cause having been duly considered, it satisfactorily appearing to the court that the parties to this action are non-residents, and that the cause of action and the subject-matter thereof arose in the Upper Peninsula of this State, it is ordered that said cause be, and it hereby is, stricken from the docket.55

The plaintiffs are both residents of the state of Pennsylvania. Three of the defendants are residents of New York, and one, of Illinois.

The controversy respecting which suit is brought arises under a contract for building a railroad in this State in the Upper Peninsula. Early in the year 1888 the plaintiffs commenced suit by attachment in the county of Marquette, but, for reasons stated in the petition for a mandamus, that suit was discontinued, and this commenced by a mutual understanding, on the agreement of the parties.

The relators pray that a writ of mandamus issue to said circuit judge, directing him to vacate the above order striking the case from the docket. In showing cause why the mandamus should not be granted, Judge Gartner sets out the opinion rendered by him at the time he ordered the case struck from the docket, as follows:

“Upon the application made for a struck jury, it was made to appear that the plaintiffs were residents of and do business in the city of Philadelphia, and the defendants in the city of New York. The subject-matter of the controversy arose and is located in the Upper Peninsula of this State. This is shown in the affidavit of counsel, wherein it is stated:

“ ‘ Affiant further says that all the parties to this suit are nonresidents of this State; * * * that the transaction involved in this suit arose in the Upper Peninsula of Michigan. It further appears that the declaration was filed December 7, 1889, and the plea December 16 following. No process ever issued out of this court in said matter, nor was service had, and it is apparent that this forum wherein to litigate and determine this controversy is by consent of counsel, and selected for convenience.’

“ The suit involves a large amount of money, the claim in the declaration being $1,000,000; and several weeks would have to be consumed in the trial thereof, involving the county in expense of thousands of dollars, and in a matter wherein the county has no interest, either in the parties or the subject-matter. It certainly does not seem right that ‘the people of this county should be made to bear the burden of expense of determining controversies between foreign litigants. The docket of this court is crowded, and we have more than we can do in determining matters wherein the jurisdiction of the court is undoubted. This case has no business here, and an order will be entered striking it from the docket.”

He further states as follows:

“ That on information and belief this respondent states the fact to be that the relators were not obliged to come into this State to prosecute a right of action against said defendants. Neither did they casually find them, or any of them, in this State, * * * nor was the appearance or plea entered by the said defendants, or any of them, in obedience to any process issued out of said circuit court, nor in obedience to any notice of rule to plead indorsed upon a copy of the declaration filed in said circuit court as commencement of suit, * * * but said declaration and plea were filed, and said appearance was entered, in accordance with the previous stipulation of the parties.”

He further alleges that there are 922 cases upon the .docket, of which 713 are for trial by jury at the present term, exclusive of criminal cases; that the circuit court is overcrowded with business, and that the disposition, of causes in said circuit court is delayed because of the crowded state of its docket; that the trial of the alleged cause would consume at least a month of the time of the judges and jury, and in that way would seriously interfere with the disposition of the legitimate business of the court, besides entailing upon the county of Wayne an expense of many thousands of dollars; and that he made the order complained of because he deemed the same in the interest of the administration of public justice, and of the public welfare.

He summarizes his reasons for striking the cause from the docket as follows:

“1. That the said circuit court has no jurisdiction of the said alleged cause.

“2. That the consent of parties and their attorneys does not and cannot confer jurisdiction upon said court, inasmuch as all parties, both the alleged plaintiffs and the alleged defendants, are non-residents of this State.

“8. That, if jurisdiction can be conferred by consent of parties and attorneys, it does not become obligatory upon the court to entertain jurisdiction, but whether the same shall be entertained or not by the court is a matter which rests in the sound discretion of the court; and that public convenience and interest are paramount to the private convenience of the parties.

“4. That it is apparent from the facts set out that the said alleged suit is brought into the circuit court for the county of Wayne for the convenience of the' parties and their attorneys only.”

I shall consider these reasons -in the order named by the circuit judge.

1. As to the jurisdiction of the circuit co,urt. The several circuit courts in this State are courts of general jurisdiction. The cause of action stated in the declaration is transitory. It is an action of assumpsit, arising, out of a contract claimed to have been performed in this State; and the circuit court for the county of Wayne has cognizance of suits upon contracts like the one sued upon irrespective of the locality of their origin, provided the parties, by service of process or otherwise, are before the court. Thompson v. Association, 52 Mich. 522 (18 N. W. Rep. 247). -Were the parties properly before the court? The suit was not commenced by either of the two methods authorized by section 7291, How. Stat. The petition asserts that the suit was commenced by the filing of a declaration (and a copy is attached to the petition). In so doing the plaintiffs submitted themselves to.the jurisdiction of the court, as a party to the record (People v. McCaffrey, 75 Mich. 115); and the defendants, by appearing and pleading to the declaration, voluntarily submitted themselves likewise to the jurisdiction of the court.

2. While it is true that no consent of parties can give a court jurisdiction of the subject-matter of a suit which the court did not possess without such consent, it is equally true that a court can obtain jurisdiction over the person by. the consent of such person; and service of process is always treated as waived by a general appearance in the cause, and pleading to the merits. And this is so although the defendant is a non-resident, and suable ■only in a particular place. Thompson v. Association, 52 Mich. 522.

There is no claim or pretense that this is a fictitious suit, or that it is not brought in good faith, to determine a genuine controversy, of vital interest to the parties concerned. Section 7547 of Howell’s Statutes enacts that issues of fact in actions upon contracts shall be tried in the county where one of the parties shall reside at the commencement of suit, unless for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, the court shall deem it necessary to order such issues to be tried in some other designated county. This provision, however, applies only to residents. We held in Atkins v. Borstler, 46 Mich. 553 (9 N. W. Rep. 850), that the statute does not apply to non-resident defendants, nor to a resident plaintiff suing a non-resident defendant, from the necessity of the case; that, if a nonresident could not be sued in any county where he could be found, he could not be sued at all. In that case the plaintiff was a non-resident of the county where the suit was brought, and the defendant was a non-resident of the State. The action was transitory, and we held the court had complete jurisdiction.

Whether courts ought to take jurisdiction in suits between aliens, when the cause of action arose in a foreign country, is not the question in dispute here. If it were, I should be, willing to follow the views expressed by Chief Justice Marshall in Mason v. The Blaireau, 2 Cranch, 240. In that case the want of jurisdiction was urged, and in delivering his opinion he said:

“These doubts seem rather founded on the idea that, upon principles of general policy, this Court ought not to take cognizance of a case entirely between foreigners, than from any positive incapacity to do so.. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it."

In suits between foreigners, brought in our courts, the courts are not obliged to entertain jurisdiction. They may and usually do so upon principles of comity, and seldom decline, except through a fear that they may not be capable of doing full and exact justice through a want of knowledge of the laws of the place where the cause of action arose, which enter. into and make &■ part of the contract, or affect the rights and remedy of the parties. In Great Western Railway Co. v. Miller, 19 Mich. 305, the plaintiff was a resident of Canada, and brought suit against the railroad company in the Wayne circuit court, in Michigan, for a trespass to his person committed in Canada. The defendant appeared voluntarily. It was objected that the court erred in taking and exercising jurisdiction. This Court said:

“The voluntary appearance of the defendant below renders any discussion of the subject of the venue unnecessary. There can be no doubt that the locality of the trespass does not of itself oust the jurisdiction, where the court has lawfully obtained control over the parties. But where the parties are not residents of the United States, and the trespass was committed abroad, the right of action in our courts can only be claimed as a matter of comity, and they are not compellable to proceed in such cases.”

In Roberts v. Dunsmuir, 75 Cal. 203 (16 Pac. Rep. 782), suit was brought by one subject of Great Britain against -others of that kingdom, upon a cause of action in tort arising in British Columbia. At the time of bringing the action the plaintiff and one of the defendants resided in the state. Two of the defendants were non-residents, and were not served, but they filed a petition to have the cause removed to the United States court, and had procured an extension of time to answer after such appearance. The court below dismissed the suit, on the ground of want of jurisdiction. The supreme court reversed this ruling, holding that the court had jurisdiction. See, also, as to jurisdiction over a non-resident defendant, Peabody v. Hamilton, 106 Mass. 217; Molyneux v. Seymour, 76 Amer. Dec. (note) 667; Whart. Confl. Law, §§ 738, 739; Smith v. Gibson, 83 Ala. 284 (3 South. Rep. 321); Roberts v. Knights, 7 Allen, 449; Barrell v. Benjamin, 15 Mass. 354; Miller v. Black, 2 Jones (N. C.), 341; Stramburg v. Heckman, Busb. 250; McCormick v. Railroad Co., 49 N. Y. 303; Campbell v. Wilson, 6 Tex. 379.

The case of McCormick v. Railroad Co., supra, was a -case where a non-resident of the state of New York sued a foreign corporation upon a cause of action which was transitory in its nature, and arose in another state. The defendant had appeared voluntarily by attorney. Mr. Justice Folger said:

“We hold that, where the court has the jurisdiction of the subject-matter or cause of action, that consent may confer jurisdiction of the person, and that such consent may be expressed by a foreign corporation by appearing, by attorney and answering generally in the action.”

3. The third reason given by the circuit judge is that if jurisdiction is conferred by consent it does not become obligatory upon the court to entertain jurisdiction. The correctness of this position must depend upon the right of the plaintiffs to seek redress in the courts of the State. If a party has a right to plant his suit in a circuit court of this State, the circuit judge has no discretion to exercise in the matter.. He cannot say to one suitor, “I will retain your suit,” and to another, “I will dismiss it.” It is among the fundamental rights of a people under our government that they may be secured in the acquirement, possession, and enjoyment of property, and for this purpose courts are instituted as part of the organic-law, in which every person shall have his remedy by due-process of law. It is secured as a privilege to which every citizen of the United States is entitled. The redress of wrongs and the means of enforcing contracts are of the greatest consequence to the citizen of every state.

Article 4, § 2, of the Constitution of the United States,, declares that—

“ The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”

In commenting upon this clause of the Constitution, the Supreme Court of the United States, in Conner v. Mliott, 18 How. 593, said:

“We do not deem it needful to attempt to define the meaning of the word ‘privileges’ in this clause of the Constitution. It is safer and more in accordance with the'duty of a judicial tribunal to leave its meaning to be determined, in each case, upon a view of the particular rights asserted and denied therein. * * * It is sufficient for this case to say that, according to the express words and clear meaning of this clause, no privileges are secured by it except those which belong to citizenship.”

The right to bring suit in the several courts of this State having jurisdiction is a privilege of every citizen of this State. Especially is this true with reference to the enforcement of contracts. A citizen of another state may come into this, and acquire and enjoy property. He may inherit and transmit property. He may enter into contracts, to the same extent that a citizen of this State can do so, and in this his rights are guaranteed by the above provision of the Constitution; and I think that his right to bring suit in this State, in any case where a citizen of the State may, is also guaranteed and protected by this provision of the Constitution. This right does not, depend upon the fact of the defendant's having property im this State which can be reached by execution. There are* many cases where, in a suit between citizens of this State, there can be no property found out of which to satisfy an execution; nevertheless the plaintiff has a right to plant his suit, litigate his claims, and obtain judgment, Wilson v. Fire Alarm Co., 20 N. E. Rep. 318.

4. The fourth reason set out by the circuit judge affords no excuse for his declining to hear the case. None of the reasons alleged appear to me to be valid reasons for refusing to hear the case, or for striking it from the docket. No court or judge has a lawful right to deny to suitors the privilege of bringing and prosecuting their suits, upon the ground that to entertain them will entail expense upon the county. The parties were rightfully before the circuit court for the county of Wayne. The court had full jurisdiction of the parties, and the subject-matter, and the circuit judge was in error ¡n holding that the court had no jurisdiction, or that it. had a discretion whether to entertain the suit or not.

A mandamus must issue as prayed for, directing Hon» George Gartner, circuit judge for the county of Wayne, to reinstate said cause upon the calendar of said court.

Morse and Grant, JJ., concurred with Ohamplin, 0. J.