Lester v. Stevens

Caton, C. J. At the time this plea to the jurisdiction of the court was filed, there were four defendants, one of whom, the sheriff of Ogle, had been brought in and made a party by the amended bill. The plea avers, that Willard and Pearce, “ the major part of said defendants,” reside in Cook county. The averment that two is the major part of four, does not make it so; nor does.the setting of a plea for hearing, admit that which cannot be true. How, our statute says, that the suit shall be commenced in the county where the defendants, or a major part of them, reside; this, if it were possible to raise the question, would put beyond the jurisdiction of any court a vast number of suits where there are several defendants, for it is very common that a major part of the defendants do not reside in any one county; and but for the rule that every plea to the jurisdiction must give a better writ, and show affirmatively that some other court can take jurisdiction, there would be a failure of justice in such cases. In order to make this plea good, we must find in it the facts which would give some other court jurisdiction. We only learn from the plea, that two of the four defendants reside in Cook county. This is not sufficient to give that court jurisdiction under the statute, any more than the residence of the other two in Ogle, would give that court jurisdiction. It gives the party no-better writ, and he may stay where he is, till he is shown a better one. The next objection is, that this is a bill to restrain the collection of a judgment rendered in the Circuit Court of Cook county. If this were the primary object of the bill, it would undoubtedly be fatal to the jurisdiction of the court, but it is not so where the principal object of the bill is for other relief, and the stay of the collection of the judgment is incidental or auxiliary, and for the purpose of making the relief complete for which the bill is filed; and for the purpose of determining these questions, even on such a plea as this, we must look into the bill itself. If the plea avers that there are but three defendants, or that two is a major part of the defendants, which is the same thing in substance, that averment in the plea cannot avail against the fact that there is on the face of the bill manifestly four defendants; and so when we can see that the principal objects of the bill are other than the stay of the execution, and that that is but the incident, the averment of the plea to the contrary cannot avail. Here, the principal objects of the bill are, to be relieved from a'mortgage or trust deed, and a sale made under it on account of usury; and the stay of the execution in the hands of one of the defendants, is introduced as incidental to that main object. Whether, in the attainment of that main object, the complainants can obtain relief from that judgment, is not before us on this plea. The bill may be obnoxious to a demurrer for multifariousness, or for want of equity, or for any other cause, without affecting this question, which is one of jurisdiction only. We think the plea was insufficient to oust the court of its jurisdiction, and that it should not have been sustained. We have treated what the party calls a demurrer to the plea as simply setting the plea down for hearing, which is the proper mode of raising the question of the sufficiency of a plea to bill in chancery, because the court below so treated it. The court would have- been justified in disregarding the paper called a demurrer, as inappropriate to such a pleading. The decree is reversed, and the suit remanded. Decree reversed.