The Opinion of the Court was delivered by
Purple, J.
The defendants in error sued the plaintiffs in error in the Circuit Court of St. Clair county, in an action of covenant, claiming damages for the breaches of covenants in a deed made and executed by the said plaintiffs to the ancestor of the defendants.
The summons issued in the suit was served on Semple, in St. Clair county, on the 13th day of May, A. D. 1845. A summons was issued against Cairns to the sheriff of Monroe county, which was served on him on the 13th of September following, in said last mentioned county. Both summons were issued on the same day. May 13th, 1845. The declaration contains no averment as to the place where the cause of action accrued, or of the residence of any of the parties, plaintiffs or defendants.
At the October term 1845, a judgment by default was entered against the plaintiffs, and a jury called and sworn, who assessed damages against them to the amount of $2319.
On the 20th of October, 1845, Semple appeared and filed a motion in arrest of judgment, which the Court sustained, upon the ground that some of the counts in the declaration were defective, the jury having assessed damages generally upon all the counts. The cause was removed to the Supreme Court by the present defendants in error, where, at the December term 1845, the judgment of the Circuit Court was reversed, and the cause remanded for further proceedings.
At the May term, A. D. 1845, of the St. Clair Circuit Court, the defendants filed the transcript of the order and proceedings of the Supreme Court, and entered a motion for a judgment upon the verdict of the jury. Semple appeared and moved for a continuance of the cause to the next term, upon an affidavit filed by him, which being adjudged insufficient by the Court, the motion was overruled. The defendants then entered a remittitur of damages to the amount of $344, and the Court gave judgment against Semple and Cairns upon the verdict of the jury for $1975.
The only question arising upon the assignments of errors in this case which we feel called upon to notice is, whether the Circuit Court had jurisdiction over the persons of the plaintiffs in error.
The Act of January 29, 1827, (Rev. Laws 1833, p. 145,) provides, “that hereafter it shall not be lawful for any plaintiff to sue a defendant out of the county where the latter esides or may be found, except in cases where the debt, contract or cause of action accrued in the county of the plaintiff, or where the contract may have specifically been nnade payable, when it shall be lawful to sue in such county, and process may issue against the defendant to the sheriff of the county where he resides; provided, that where there are several.defendants living in different counties, the plaintiff may sue either in the county where the cause of action arose, or in any county where one or more of said defendants may reside, and shall have the like process against such as reside out of the county where the action shall be brought as above.” This suit is sought to be maintained under the proviso above recited.
This statute authorizes the Circuit Court to send its process to a foreign county in three cases: 1st. Where the contract or cause of action accrued in the county of the plaintiff; 2d. When suit is brought in a county where the contract is specifically made payable; 3d. Where there are several defendants who reside in different counties.
This Court has frequently been called upon to decide questions pertaining to the exercise of jurisdiction on the part of the Circuit Courts under the provisions of this law. In the case of Clark v. Harkness, 1 Scam. 56, a suit was commenced in Adams and the process issued to Morgan county: Held, that there should have been a special averment in the declaration of one of the causes enumerated in the Act to give the Court jurisdiction.
In Key v. Collins, 1 Scam. 403, it was also decided, that where process had issued from the county of Morgan to the county of Pike, the Circuit Court had no jurisdiction, the declaration containing no averment that the plaintiff resided in Morgan, or that the cause of action accrued in that county, and that under the first clause or provision of the statute, the cause of action must accrue, and the plaintiff reside in the county where the suit is commenced.
The same do crine is re-affirmed in the cases of Shepherd v. Ogden, 2 Scam. 259; Wakefield v. Goudy, 3 do. 133; Brown v. Bodwell, 4 do. 302, and Clark v. Clark, 1 Gilm. 33. None of these cases referred to precisely meet the question. now under .consideration. It must be admitted, however, that they settle beyond controversy, this principle: That wherever and whenever a Circuit Court sends its process beyond the limits of the county in which the suit is brought, its jurisdiction must be shown by express averments in the declaration. It is admitted that any defendant may be sued in any county where he may “be found;3’ and this is all that is determined by the cases of Beaubien v. Brinckerhoff, 2 Scam. 270, and Brewster v. Scarborough, Ib. 280. The doctrine is, that when such' defendant comes within the territorial jurisdiction of a Court, process may issue against him, and he be compelled to appear and answer, notwithstanding he may reside in a different county from that in which the suit is brought. I apprehend that this is a principle of the Common Law, which has been adopted by statute in this State, and in no way altered or supplied by any legislative action.
In this case, Semple, at the time process was served on him, was found in the county of St. Clair. The Circuit Court of that county had jurisdiction over his person. But does it follow, that, because a Court has obtained jurisdiction over the person of one of several joint obligors, that such jurisdiction necessarily extends to others, who reside beyond the territorial limits of the county in which the suit Is pending? What does the law require to authorize the Court to send its process against Cairns to the county of Monroe, where he resides? Clearly it must be, that the residence of Semple is in the county of St. Clair. In what manner is this fact to be shown?
It is contended, that for this purpose, the return of the sheriff upon the writ is sufficient evidence. We cannot assent to such a doctrine. It is directly opposed to all the former decisions of this Court, which determine, without exception, that where ex-territorial jurisdiction is assumed, it must be claimed by positive averments in the declaration.
- By the proviso of the statute under which this suit is brought, the same might have been commenced wheie the cause of action arose, or in a county where either of the covenantors resided. Had it been commenced in the county where the cause of action arose, can there be a reasonable pretence, under the decisions of this Court, for contending that the facts conferring jurisdiction need not have been specially alleged in the declaration?
The return of the officer only proves, that he served the process at the time, in the manner, and at the place mentioned in his return. This is all he is authorized or required by law to do.
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The Opinion of the Court was delivered by
Purple, J.
The defendants in error sued the plaintiffs in error in the Circuit Court of St. Clair county, in an action of covenant, claiming damages for the breaches of covenants in a deed made and executed by the said plaintiffs to the ancestor of the defendants.
The summons issued in the suit was served on Semple, in St. Clair county, on the 13th day of May, A. D. 1845. A summons was issued against Cairns to the sheriff of Monroe county, which was served on him on the 13th of September following, in said last mentioned county. Both summons were issued on the same day. May 13th, 1845. The declaration contains no averment as to the place where the cause of action accrued, or of the residence of any of the parties, plaintiffs or defendants.
At the October term 1845, a judgment by default was entered against the plaintiffs, and a jury called and sworn, who assessed damages against them to the amount of $2319.
On the 20th of October, 1845, Semple appeared and filed a motion in arrest of judgment, which the Court sustained, upon the ground that some of the counts in the declaration were defective, the jury having assessed damages generally upon all the counts. The cause was removed to the Supreme Court by the present defendants in error, where, at the December term 1845, the judgment of the Circuit Court was reversed, and the cause remanded for further proceedings.
At the May term, A. D. 1845, of the St. Clair Circuit Court, the defendants filed the transcript of the order and proceedings of the Supreme Court, and entered a motion for a judgment upon the verdict of the jury. Semple appeared and moved for a continuance of the cause to the next term, upon an affidavit filed by him, which being adjudged insufficient by the Court, the motion was overruled. The defendants then entered a remittitur of damages to the amount of $344, and the Court gave judgment against Semple and Cairns upon the verdict of the jury for $1975.
The only question arising upon the assignments of errors in this case which we feel called upon to notice is, whether the Circuit Court had jurisdiction over the persons of the plaintiffs in error.
The Act of January 29, 1827, (Rev. Laws 1833, p. 145,) provides, “that hereafter it shall not be lawful for any plaintiff to sue a defendant out of the county where the latter esides or may be found, except in cases where the debt, contract or cause of action accrued in the county of the plaintiff, or where the contract may have specifically been nnade payable, when it shall be lawful to sue in such county, and process may issue against the defendant to the sheriff of the county where he resides; provided, that where there are several.defendants living in different counties, the plaintiff may sue either in the county where the cause of action arose, or in any county where one or more of said defendants may reside, and shall have the like process against such as reside out of the county where the action shall be brought as above.” This suit is sought to be maintained under the proviso above recited.
This statute authorizes the Circuit Court to send its process to a foreign county in three cases: 1st. Where the contract or cause of action accrued in the county of the plaintiff; 2d. When suit is brought in a county where the contract is specifically made payable; 3d. Where there are several defendants who reside in different counties.
This Court has frequently been called upon to decide questions pertaining to the exercise of jurisdiction on the part of the Circuit Courts under the provisions of this law. In the case of Clark v. Harkness, 1 Scam. 56, a suit was commenced in Adams and the process issued to Morgan county: Held, that there should have been a special averment in the declaration of one of the causes enumerated in the Act to give the Court jurisdiction.
In Key v. Collins, 1 Scam. 403, it was also decided, that where process had issued from the county of Morgan to the county of Pike, the Circuit Court had no jurisdiction, the declaration containing no averment that the plaintiff resided in Morgan, or that the cause of action accrued in that county, and that under the first clause or provision of the statute, the cause of action must accrue, and the plaintiff reside in the county where the suit is commenced.
The same do crine is re-affirmed in the cases of Shepherd v. Ogden, 2 Scam. 259; Wakefield v. Goudy, 3 do. 133; Brown v. Bodwell, 4 do. 302, and Clark v. Clark, 1 Gilm. 33. None of these cases referred to precisely meet the question. now under .consideration. It must be admitted, however, that they settle beyond controversy, this principle: That wherever and whenever a Circuit Court sends its process beyond the limits of the county in which the suit is brought, its jurisdiction must be shown by express averments in the declaration. It is admitted that any defendant may be sued in any county where he may “be found;3’ and this is all that is determined by the cases of Beaubien v. Brinckerhoff, 2 Scam. 270, and Brewster v. Scarborough, Ib. 280. The doctrine is, that when such' defendant comes within the territorial jurisdiction of a Court, process may issue against him, and he be compelled to appear and answer, notwithstanding he may reside in a different county from that in which the suit is brought. I apprehend that this is a principle of the Common Law, which has been adopted by statute in this State, and in no way altered or supplied by any legislative action.
In this case, Semple, at the time process was served on him, was found in the county of St. Clair. The Circuit Court of that county had jurisdiction over his person. But does it follow, that, because a Court has obtained jurisdiction over the person of one of several joint obligors, that such jurisdiction necessarily extends to others, who reside beyond the territorial limits of the county in which the suit Is pending? What does the law require to authorize the Court to send its process against Cairns to the county of Monroe, where he resides? Clearly it must be, that the residence of Semple is in the county of St. Clair. In what manner is this fact to be shown?
It is contended, that for this purpose, the return of the sheriff upon the writ is sufficient evidence. We cannot assent to such a doctrine. It is directly opposed to all the former decisions of this Court, which determine, without exception, that where ex-territorial jurisdiction is assumed, it must be claimed by positive averments in the declaration.
- By the proviso of the statute under which this suit is brought, the same might have been commenced wheie the cause of action arose, or in a county where either of the covenantors resided. Had it been commenced in the county where the cause of action arose, can there be a reasonable pretence, under the decisions of this Court, for contending that the facts conferring jurisdiction need not have been specially alleged in the declaration?
The return of the officer only proves, that he served the process at the time, in the manner, and at the place mentioned in his return. This is all he is authorized or required by law to do. It proves that the party who is served with process was in his county at the time of service, and there is no principle of law, which makes the return of such officer evidence of the domicil of a defendant. It is the opinion of the Court, that there is nothing in this record showing that the Circuit Court had jurisdiction over the person of the plaintiff Cairns.
It was insisted on the argument, that the Courts in Kentucky, under statutes similar to ours, have held a different doctrine. A statute of that State, passed in 1796, reads as follows: “When two or more persons are bound jointly and severally in any bond or writing obligatory, and the persons so bound shall reside in different counties, it shall be lawful for the clerk of the Court, where the suit is brought against one of the obligors, to issue a capias ad respondent dum against the other obligor, or obligors directed to the sheriff of the county where they may reside;” and also by a subsequent Act, passed in 1812, it is provided that, “in every species of personal actions where there is more than one defendant, the plaintiff, commencing his action in the county where either of them resides, may issue any writ or writs to any county where the defendants, or any of them may be found.”
In the case of Moore v. Smith, the Supreme Court of Kentucky decided, that the description of persons mentioned in these Acts, might be sued in any county in the State, where either of them might be found; and that when process had been served on one, the others might be brought in from foreign counties, even though some of them were non-residents of the State; that the Acts were both in force, and not inconsistent with each other; and, that the right to sue was not confined to the domicil of one of the obligors; that the word “reside,” as used in these Acts, might properly be cons trued to mean wherever the defendants might happen to be at the time of service. This part of the decision was unnecessary, and would hardly bear criticism. We apprehend that there is a plain and manifest distinction between the statutes of Kentucky and this State.
By the Kentucky Act of 1796, if the obligors in a bond or writing obligatory, reside in different counties, it is made lawful for the clerk of the Court, where the suit is brought against one of the obligors, to issue process against the others to the county where they may reside. By this provision, the jurisdiction of the Court to send its process to a foreign county does not depend upon the residence of the obligor first sued, but it arises from the fact of the institution of a suit against him at any place where he may happen to be found. Again, by the subsequent Act of 1812, the jurisdiction of the Court, when the action is commenced in the county where either of the defendants resides, is extended to any county where the said defendants, or either of them, may be found. The Court, in the decision before referred to, construed these Acts together, considered them both in force, and the Common Law jurisdiction of the Court over all parties who might come within its usual territorial jurisdiction, still existing, and in no wise affected or altered by the statutes; and placed considerable stress upon a usage and practice which had long prevailed, and been considered settled and established in the State. The case and the one at bar are not parallel. But if they were, although the former is entitled to respect, we should not feel justified in departing from the spirit of the adjudications which have been made by our own Courts, so repeatedly, that they ought to be considered as settled law.
A point has been made by the counsel for the defendants here, and not without much plausibility, that the judgment in this case cannot now be reversed for want of jurisdiction in the Court below, for the reason that the cause having been once before in this Court, brought here by the present defendants in error, passed upon by this Court, and the judgment of the Circuit Court reversed, that it is now too late to raise the question of the jurisdiction of the Circuit Court. This question is not clear of douht, and for this reason I have carefully examined the authorities, and considered them in connection with the established rules and practice of this Court. The substance of the decisions seems to be, that when a case has been once decided on its merits, and the same cause shall, at a subsequent time, be brought before the same tribunal, the Court will not go behind its former adju- ’ dications, even though it shall appear upon the record that the Court . acted without jurisdiction; that a superior Court cannot review or reverse its own decisions solemnly made. 5 Cranch, 314; 6 do. 267; 10 Wheat. 431, 432; 1 do. 304; 7 do. 58; 12 Peters, 492; 7 Metc. 286.
I have looked into all these cases. Those contained in the U. S. Reports are principally, and I believe all, cases in which the same party had a second time removed the cause from the Circuit to the Supreme Court of the United States, after the same had been heard in both Courts upon the merits, and remanded for further proceedings; and in which, such party sought to assign errors upon the record, which had occurred prior to the first adjudication in the Supreme Court. That of Booth v. The Commonwealth, 7 Metc. 286, was a second writ of error brought by the plaintiff. To the first, there had been a plea of in nullo est erratum. Shaw, Chief Justice, said: “On such a plea, any error apparent on the record may be assigned, and the entire validity and legal correctness of the judgment are open, and of course decided. Upon the principle of res judicata, the plaintiff in error is now estopped from denying that the supposed error, now insisted on, was not considered and adjudged against him by the affirmance of the judgment.” “New errors maybe assigned viva voce at the hearing, taking care that the adverse party is not surprised; and that has been frequently done; and if the judgment be erroneous, in the particulars thus indicated, though not in the particulars assigned for error, the judgment will be reversed.” In this Court the defendant in error is not permitted to assign errors, and the constant rule of practice has been, to notice no errors or irregularities in the record or proceedings, which have not specially been set down and assigned for error. Consequently, the presumption that the question now before the Court is res adyudicata, is not raised. In this Court it will be presumed, when a party sues out a writ of error and brings his case here for adjudication, and the same is determined upon the merits and errors assigned, that he has no further objection to urge against the record, and that if errors exist, which are not so assigned, that they are waived. The parties are mutually entitled to this right— no more. In this case, it is the opinion of the Court that Cairns, at least, has done nothing which can be considered as amounting to a waiver of his privilege.
The judgment of the Circuit Court is reversed with costs.
Treat, J. dissented.
Judgment reversed.
Thomas, J. having been of counsel in this case, did not sit at the hearing. The case was argued at the December term 1846, a re-hearing granted, and finally decided at this term.