Burrall v. Eames , 5 Wis. 260 ( 1856 )

By the Court,

Smith, J.

This was a suit commenced. in the Circuit Court of Rock county, to compel the specific performance of a contract for the sale and conveyance of certain lands situated in said county. The defendant, at the time the bill was filed, resided in Brown county in this state. The subpoena issued in the cause was sent to the sheriff of Brown county, who served the same in the usual manner on- the defendant at his residence. A plea to the jurisdiction was thereupon interposed by the defendant, alleging that the .suit should have been commenced in Brown county, and that the Circuit Court -of Rock county had no power to send a subpoena to Brown county for service on the defendant residing there; The plea was sustained by the court below, and the complainant appealed.

The only question presented by the record in this case is, whether the bill should have been filed in the county where the land is situated, or in the county where the defendant resides. It is believed that we can be but little aided by authority in deciding this question, but will have to rely upon general principles, and our - particular statutes, so far as they, bear upon the case. Where no rule of court or statute is provided to regulate our practice, it is governed by the rules of the High Court of Chancery in England. There the process runs throughout the realm, and the bill is filed with the register. In New York, if the suit is commenced before the chancellor, the bill is filed with the register or assistant register ; if before the vice-chancellor, the bill is filed with the clerk of that circuit, without any reference to the county in which the defendant resides.

In this state the statute provides that all process may be directed to the proper officer of any county in the state, and shall by him be executed and returned to the court from -whence it issued, and if there be more than one defendant, the suit may be instituted in the county in which either- of the defendants resides. E. & ch. 84, § 14. This latter clause can hardly be considered as a restriction upon the general jurisdiction, of .the Circuit Court in equity.

As a general rule the suit should be, instituted where the parties, or the subject matter of the suit may be situated.

A suit for specific performance, like that of foreclosure, is of a two-fold character, partly in personam and partly in rem. The court may enforce the contract, either by operating upon the person to compel a conveyance, or may pass the title of the land by decree. If the defendant is a non-resident, certainly the proper county in which to file the bill, would be that in which the land is situated; and it would seem that as the sole object of the suit is to subject the specific property to the jurisdiction and control of the court; the county in which it is situated is the proper county in which to commence the suit, although the defendant may reside in another county in the state. There is nothing in the statute which precludes such practice; it is agreeable to the usual practice of courts of equity in other jurisdictions, is the most convenient and safe for all the parties, and ought to be sustained.

We have been referred to section 3 of chapter 90 of the Revised Statutes, which provides, that no person shall be sued in the circuit or county courts, in any other county than the one in which he resides, or in which he may be .found; but this refers exclusively to personal actions at law, and has no bearing upon the question before us. As, therefore, without any statute or rule of court, by the common usage of courts of chancery, the bill might be filed in cases of this kind, in the county where the land lay, and as there is no statute or rule of court restricting or forbidding this practice, we are of the opinion that the plea to the jurisdiction was insufficient, and should have been overruled. Certainly personal service upon the defendant, in the state, is equivalent, at least, to publication of notice, as in case of a nonresident ; and no one doubts that in sucb case the bill could bave been filed in Rock county. Does tbe accident of the defendant’s residence in another county of the state, oust the Circuit Court of a jurisdiction which would otherwise be unquestionable ? We think not.

The order of the Circuit Court, from which the appeal in this case was taken, is reversed, and the cause remanded for further proceedings according to law.