Turrill v. Walker

By the Court, Wing, J. The defendant insists that his proceedings in this case are authorized by the statutes of this State, and therefore there is no error in this case which the Court can notice. — 179 — The ninth Section of Chapter 89, Title 21, declares : u That the Circuit Courts, within and for their respective Counties, shall have and exercise jurisdiction of all civil actions and remedies at law and in equity, and all prosecutions in the ■ name of the People of this State, for crimes, misdemeanors, offences and penalties, except in cases where exclusive jurisdiction shall be given to or possessed by some other Court or tribunal, in virtue of some statutory provision, or of the. principles or usages of law, and shall have such appellate jurisdiction and powers as shall be given by law, and the said Courts shall also have and exercise, withm and for their respective Counties, all the powers usually possessed and exercised by Courts of - Record at the common law, and by the Courts of Chancery as heretofore established, for the lull exercise of the jurisdiction hereby conferred.” This State was, at the adoption of the code of 1846, divided into four Circuits, and the Judges of the Supreme Court were required to perform the duties of Circuit Judges in the Counties composing the Circuit in which they resided. This code, except as amended by subsequent legislation, has remained in force until now. The Constitution of 1851 provided for a new organization of Courts, and required that the State should be divided into eight Circuits, and that eight Circuit Judges should be elected. The law by which jurisdiction was given to these Courts (6'ess. Lams of 1851, p. 245, § 8), is the same as the section quoted from the code of 1846, with this addition at the close of the section: “ Subject to such modifications as may be provided by the laws of this State.” No essential alterations have been made in the laws regulating process, taking bail, and issuing executions, etc. Section 6, and down to and including Section 22, of Chapter 89, Title 22, provides for and regulates the commencement of suits by summons, capias ad respondendum, and declaration, but imposes no restriction as to the place in which they may be served. Chapter 106, Section 10, authorizes executions to — 180 — be sent into different Counties. This is amended by the law of 1847, p. 172, and confines it to successive executions. Chapter 96, Section 1, authorizes subpoenas for witnesses to issue to any part of the State. Title 24, Chapter 114, regulating proceedings in attachment, confines the service to the County by express words. Chapter 90, Title 21, Section 18, authorizes Sheriffs to execute process of Circuit Courts sitting in Chancery in any part of the State. Section 40 restricts such service to the County; this was altered by the law of 1847, which permits service of process from Courts of Chancery in any part of the State. There could have been no good reason for these several enactments authorizing service of process beyond the boundary of Counties, if the Court, from the nature of its organization, could have enforced it. Many of the provisions of this code were framed in reference to a nisi prius system, which was omitted by the Legislature, and the system of Circuit Courts was continued as- before, but corresponding alterations were not made in all the chapters. This will account for the many inconsistencies to be met with- in the different chapters. If there was any doubt as to the true construction to be given to the Act conferring jurisdiction on Circuit Courts in the code of 1838, it would seem that none could be reasonably entertained in reference to the code of 1846,-re-enacted in 1851, and which now governs and regulates the jurisdiction of Circuit Courts. The Circuit Court for each county sits within and for the same, and is restricted to its local limits. Though their jurisdiction is general over the subject matter of suits, yet, in respect to persons and property, it cannot be exercised beyond the limits of the County. The Circuit Courts of the United States are held within and for each State or district. Judge Washington, in Ex parte Graham (3 Washington C. Ct. R., 459), in speaking of the jurisdiction of those Courts, says : “ This division and appointment of particular Courts — 181 — for each district necessarily confines the jurisdiction of the local tribunal within the bounds of the respective districts within which they are directed to be held; were it otherwise, and the Court of one district could send compulsory process • into any other, so as to draw to it a jurisdiction over persons or things without the limits of the district, there would result a clashing of jurisdiction between the Courts, which could not easily be adjusted.” In the Act of Congress there is an express provision restricting the service of original writs to the districtbut a subsequent Act of Congress authorized subpoenas for witnesses to attend the Courts of one district, to run into any other district; and by another Act, writs of execution upon judgments in favor of the United States, in any of their Courts in one State, were authorized to run and be executed in any other State or Territory. Judge Washington says: “These several statutory provisions were enacted, not because they were supposed by Congress to be necessary in consequence of the statute confining the execution of original process to the district, but because the jurisdiction of the Courts was essentially confined by their organization within the limits of their respective, districts; for it is to be observed that that section applies exclusively to original writs, and to the parties to those suits, and, therefore, imposed no restriction in respect to writs of .execution and subpoenas for witnesses, which could render the provisions of those statutes at all necessary.” He considers the enactment in relation to original process to have been from abundant caution, and that from the legislation in regard to executions and subpoenas, it was evident that Congress considered the process of those Courts was circumscribed to the limits of the district. These several Acts of Congress are in striking analogy to laws of our State, to which we have referred, and we consider the views of Judge Washington as applicable in their scope — 182 — to the laws of our State as to the laws of Congress of which he was speaking. Judge Story, in Picquet vs. Swan (5 Mason’s R., 41), in speaking of the decision of Judge Washington, says: “I follow with undoubted confidence the course of his reasoning.” He then proceeds to remark upon the same acts, and we shall offer no apology for quoting largely from his opinion. He says : “ The Courts of a State, however general may be their jurisdiction, are necessarily confined to the territorial limits of a State. Their process cannot be executed beyond those limits, and any attempt to act upon persons or things beyond them, would be deemed a usurpation of foreign sovereignty, not justified or acknowledged by the law of nations. Even the Court of King’s Bench, in England, though a Court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland or the Colonies, to compel an appearance or justify a judgment against persons residing therein at the commencement of the suit. This results from the general principle, that a Court created within and for a particular Territory, is bounded, in the exercise ef its powers by the limits of such Territory. It matters not whether it be a Kingdoxn, a State, a County, or other local district. If it be the former1, it is necessarily bounded and limited by the sovex’eignty of the Government itself, which cannot be extx’a-temtorial; if the latter, then the judicial intex’pretation is, that the sovereign has chosen to assign this special limit, short o± his general authority. From these remarks of Judges Washington and Story, which we have thought to be applicable as well to the laws cited from our code as to the laws of Congress, it would seem that it must have been the intention of the Legislature to confine the exercise of jurisdiction by our Circuit Courts to Counties in which suits might be commenced, and that without some express statutory provision, no judgment could be rendered in those Courts against persons upon whom — 183 — process could not be personally served within the County, unless by consent. The clause in our statute, authorizing •the Circuit Courts to exercise within and for their respective Counties, all the powers usually possessed and exercised by Courts of Record at the common law and in equity, is also subject to the same limitation. By the grant of this power, it is not intendéd to extend the jurisdiction given in the previous portion of this section, beyond the limits of the County. Its purpose is easily understood by a comparison of this clause with a similar clause in the laws regulating the jurisdiction of Justices of the Peace. (Sess. L. of 1856,. p. 427, Sec. 4.) The construction we have given is confirmed by the consideration that our present statute is but little variant from Section 4, of Title 1, Part 3, Chapter 3, of the Code of 1838, and that, since the adoption of that code, but one ease (before this) has been brought to the knowledge of this Court, in which an effort has been made to obtain jurisdiction of a person by serving process upon him in a County other than that in which the suit was commenced, and that case, as we are informed, is still pending. The understanding of the profession has been, that original process could not be served (at least in ordinary cases) beyond the limits of a County. But it is claimed, that if the jurisdiction of the Court was limited to the bounds of Wayne County, the service of the declaration out of the County was a defect of service, and is a mere irregularity, and should have been taken advantage of at the first opportunity, and before the plaintiff below had taken any further steps. An irregularity is defined in 1 Tidd’s Pz\, 514, to be: “ The want of adherence to some pz’esczibed zuzle or znode of proceeding; and it consists either in omiting to do something that is necessary for the due and orderly conductiizg of a suit, or doing it in an unreasonable manner. Thus the — 184 — want of notice is an irregularity, whether it be to process or declaration. The class of cases cited by defendant relate to cases similar to those cited by Tidd, in illustration of his definition. In all such cases, there can be no dispute but that if a defendant will take advantage of the irregularity, he must do so at the earliest period. There is another class of cases decided in the King’s Bench and Common Pleas, in which process was served by a Sheriff beyond the bounds of his County, on the confines of another County, or the process was directed to a wrong County, or served upon a person exempt from such service, either because of some personal privilege, or because he was in a place within a County exempt from the service of process by a Sheriff of the County. -_Of this class are: 1 Marsh, 550; 1 Chit’s R., 333; 7 Taunt.; 1 Moore, 299; 4 Maulé & Sel., 412; 1 Man. & Ry., 320. In some of these cases the defendant had said or done what was deemed a waiver of the irregularity, but in respect to most of them, the true ground upon which they were sustained was, that the defendant had notice of the proceedings, and of what was required of him, and the Courts from which the process emanated were Courts of general jurisdiction extending throughout the realm, and had jurisdiction over all persons, unless they were exempt from suit by some law or usage; and in such case, it was held they must show their exemption by appearing to take advantage of it in due time, or they were deemed to have waived it; it was a personal privilege which they might waive, and which they did waive, by not appearing and objecting in due time. (See 13 Ill. R., Kennedy and wife vs. Green, 433). But it is not to be inferred from those cases that the Courts of King’s Bench would sustain the service of process upon a person in Scotland, or any other place beyond the jurisdiction of the Court, or that a judgment could be sustained upon such service, and the defendant be precluded from having it reversed on error. This is expressly denied in Buchanan vs. — 185 — Baker (9 East., 192). In the case at bar, tbe plaintiffs were as much beyond the reach of process from tbe Circuit Court of Wayne County, as if they bad been in Canada. They were not only exempt from tbe service of civil process emanating from that Court in any form of action, and consequently they were not bound to appear and plead their privilege in abatement. Tbe Supreme Court of tbe United States decided, in the case of Rhode Island vs. Massachusetts (12 Peters’ R., 657), “ That no Court can, in tbe ordinary administration of justice in common law proceedings, exercise jurisdiction over a party, unless be shall voluntarily appear, or is found within tbe jurisdiction of the. Court, so as to be served with process. Such process cannot reach tbe party beyond tbe territorial jurisdiction of tbe Court; this is a personal privilege, which may be waived at tbe option of tbe party.” Nor would it vary tbe legal result in this case that tbe plaintiffs bad actual notice of this action, for they are not bound to appear. (5 Mason R., 43.) There can be no presumption in this case in favor of tbe jurisdiction of the Circuit Court, because it is a Court of general jurisdiction, or at tbe least, not an inferior Court in the sense of tbe common law. Tbe question is not here, whether, if tbe facts to give jurisdiction do no appear on tbe record, tbe proceeding wuuld be irregular, but whether, when it does appear on tbe record that tbe Court did not acquire jurisdiction, the judgment is not erroneous. Tbe record says afterwards, to wit: On tbe 12th day of February, 1855, there was filed in tbe office of tbe Clerk of said County a copy of said declaration and notice of said rule to plead, with a return of tbe Sheriff endorsed thereon, which return is in tbe words and figures . following, to wit: Then follows tbe return of the Sheriff of Lapeer County, as be styles himself, in which be says, “Served tbe within declaration upon James Turrill and — 186 — Henry Turriff, by delivering to them a true copy thereof, on the 24th day of January, 1855 ; from which it appears, not only that the service was irregular, as being out of the County of Wayne where the declaration was filed, but only a copy of the declaration was served on plaintiffs without any notice of the rule to plead, or of the purpose in serving it upon them, or that a suit was pending, or anything in relation to it. It must be presumed, and indeed it appears evident, that this service of declaration was the means, and the only means, which defendant made use of to bring plaintiffs into Court to answer to his declaration. There was no notice of the purpose for which it was served, or of what defendant intended further to do in respect to it or the plaintiffs. Even, according to the English practice, the plaintiffs would not waive any rights by faffing to notice it. The rule is thus stated in Fletcher vs. Wells (6 Taunt., 191): “The counsel for the plaintiffs misconceive the rule. It is, that if there has been irregularity, the party suffering it is not bound to move to set it aside within any specific time, for he may reasonably suppose that the opposite party will discover his mistake, and abandon his defective proceedings; but if the party guilty of the irregularity takes one step more, which shows that he does not intend to abandon his process, then it is-incumbent on the party complaining to apply immediately to set it aside, for if he takes a step himself, or permits the other party to take a further step, it is a waiver of the irregularity. Here the defendant being served 'with defective process, was not bound to move to set it aside, until after the plaintiff had shown that he meant to act upon it. The plaintiff gave notice of declaration, upon which the defendant ought immediately to have applied, but he lies by until the plaintiff has executed his writ of inquiry, and, therefore, he has hereby waived the irregularity.” The course of proceedings in the King’s Bench and Common Pleas would have required notice of subsequent steps ■ after the service of — 187 — process; and in this case, if tbe rule to plead bad been served, there might have been some ground to claim, if there was no other defect in the case, that the plaintiffs had waived their right to object or bring error by not appearing and pleading in abatement, or moving to quash for irregularity. Upon both grounds we think the proceedings were erroneous, and should be reversed. Judgment affirmed. Present, Wing, Green, Pratt, Johnson, Copeland, Douglass, J. J. Martin, J., did not sit in this case.