Dumont v. Lockwood

Dewey, J. — Dumont commenced an action of trover against Lockwood in the Clinton Circuit Court, laying the venue in Cass county. The defendant pleaded not guilty, upon which there was issue. The. cause was continued several times, when, on the motion of the defendant, the Court dismissed the action on the ground of a supposed want of jurisdiction. We think the Court was mistaken in supposing they had no jurisdiction of the cause. The statute of jeofails, which was in force when the action was commenced, adopts the act of 16 and 17 Car. 2, c. 8. R. S. 1838, p. 456. The English statute enacts, that no judgment shall be reversed or arrested “for that there is no right venue, so as the cause were tried by a jury, of the proper county or place where the action is laid; ” and one clause of our present statute of jeofails, which was in force when the cause was dismissed, contains a similar provision. R. S. 1843, pp. 714, 715. It has been held, that the statute of Car. 2 cured a wrong venue, if there had been a verdict in the county where the action was laid or brought. Craft v. Boite, 1 Saund. 246, 248, n. 3. And even in a local action brought and tried in a wrong county, the defect, if it appear of record, is aided by the same statute. A demurrer, however, will reach it. Id. 241, c, n. 6.—Mayor of London v. Cole, 7 T. R. 583. So,- also, a local action may, by the consent of the parties appearing of record, be tried in another county. 1 Chitt. PI. 268. And in transitory actions like this, a wrong venue in a declaration is mere matter of form, and can be reached only by a special demurrer. Briggs v. The Nantucket Bank, 5 Mass. R. 94.—Gilbert v. The Nantucket Bank, Id. 97. These authorities suffice to show that the Circuit Court of Clinton county had jurisdiction of this cause, and that its dis-mission was erroneous. H. P. Biddle, for the plaintiff. D. Mace and W. Wright, for the defendant. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.