Clark v. Spencer

Wayne Circuit Court

Clark v. Spencer

2 Mich. N.P. 78

DecidedMarch 15, 1871

StatusPublished

This text of 2 Mich. N.P. 78 (Clark v. Spencer) is published on Counsel Stack Legal Research, covering Wayne Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Spencer, 2 Mich. N.P. 78 (Ohio Super. Ct. 1871).

Pincite

Opinion

By the Court,

Patciiin, J.

The plaintiff in this case resides in Windsor, Canada, and the defendant in Oakland County, in this State.

[79]*79The suit was commenced by declartion in assumpsit, which was served upon the defendant in this county. The defendant put in a plea of abatement, to which.the plaintiff demurred.— The only question raised by the demurrer is, whether both parties being non-resident, this Court has jurisdiction of the cause. It is conceded that, so far as the pleadings show, before the plea in abatement, jurisdiction was complete, but it is claimed that as soon as it appears that both parties are non-residents that jurisdiction ceases.

The statute provides that actions of this kind shall be fried in the county where one of the ¡parties shall reside at the time of commencing such action, unless the Court shall deem it necessary for the convenience of parlies and their witnesses, or the purposes of a fair and impartial trial; to order any such issue to be tried in some other county, in which case the same shall be tried in the county so designated. Laws of 1809, page 9. My attention has not been called to any other statute affecting the case in any particular. It will be noticed that the place of trial is only mentioned here, and not the commencement of suit. It is quite clear that the effect of the law would be to remove the cause for trial in the county where one of thepart'ei resided at the commencement of the suit, unless otherwise ordered by the Court for some of the reasons mentioned in the law, for if the cause is tried in such county the law is fully complied with.

It cannot be claimed that the cause must be tried in the county where it is commenced, for the reason that there is no such provision in the law, it only providing that regardless of the commencement,the cause must be tried in a certain locality. The case at bar undoubtedly, unless coming within the exceptions, cannot be tried in-this county.

The demurrer, therefore, must be sustained.

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By the Court,

Patciiin, J.

The plaintiff in this case resides in Windsor, Canada, and the defendant in Oakland County, in this State.

[79]*79The suit was commenced by declartion in assumpsit, which was served upon the defendant in this county. The defendant put in a plea of abatement, to which.the plaintiff demurred.— The only question raised by the demurrer is, whether both parties being non-resident, this Court has jurisdiction of the cause. It is conceded that, so far as the pleadings show, before the plea in abatement, jurisdiction was complete, but it is claimed that as soon as it appears that both parties are non-residents that jurisdiction ceases.

The statute provides that actions of this kind shall be fried in the county where one of the ¡parties shall reside at the time of commencing such action, unless the Court shall deem it necessary for the convenience of parlies and their witnesses, or the purposes of a fair and impartial trial; to order any such issue to be tried in some other county, in which case the same shall be tried in the county so designated. Laws of 1809, page 9. My attention has not been called to any other statute affecting the case in any particular. It will be noticed that the place of trial is only mentioned here, and not the commencement of suit. It is quite clear that the effect of the law would be to remove the cause for trial in the county where one of thepart'ei resided at the commencement of the suit, unless otherwise ordered by the Court for some of the reasons mentioned in the law, for if the cause is tried in such county the law is fully complied with.

It cannot be claimed that the cause must be tried in the county where it is commenced, for the reason that there is no such provision in the law, it only providing that regardless of the commencement,the cause must be tried in a certain locality. The case at bar undoubtedly, unless coming within the exceptions, cannot be tried in-this county.

The demurrer, therefore, must be sustained.

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Bluebook (online)

2 Mich. N.P. 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-spencer-ohcirctwayne-1871.