3. Filing a declaration on the part of the | p. 491; Barrell v. Benjamin, supra; Daris v. plaintiff, and appearance and pleading on the Pierse, 7 Minn. 13; Morgan v. Neville, 74 Pa. part of defendants, is a sufficient waiver of pro- | 52; Story, Conf. L. § 542; Wharton, Conf. L. cess, although the parties are nonresidents. § 705; Miller v. Black and Great Western R. Co. v. Miller, supra; Gardner v. Thomas, 14 Johns. 134.

PETITION for a writ of mandamus to com- Mass. 354; Roberts v. Dunsmuir, 75 Cal. 203.

The controversy respecting which suit is brought arises under a contract for building a railroad in this State in the upper peninsula. Early in the year 1888 the plaintiffs commenced suit by attachment in the County of Marquette, but, for reasons stated in the petition for a mandamus, that suit was discontinued, and this Corfield v. Coryell, 4 Wash. C. C. 380; commenced by mutual understanding, on the Slaughter House Cases, 83 U. S. 16 Wall. 76 agreement of the parties. The relators pray (21 L. ed. 408); Paul v. Virginia, 75 U. S. 8 that a writ of mandamus issue to said circuit Wall. 180 (19 L. ed. 360); Cooley, Const. Lim. I judge, directing him to vacate the above order

jurisdiction of the said alleged cause. (2) That the consent of parties and their attorneys does not and cannot confer jurisdiction upon said court, inasmuch as all parties, both the alleged plaintiffs and the alleged defendants are nonrescan be conferred by consent of parties and attorneys, it does not become obligatory upon the court to entertain jurisdiction, but whether the same shall be entertained or not by the court is a matter which rests in the sound discretion of the court; and that public convenience and interest are paramount to the private convenience of the parties. (4) That it is apparent from the facts set out that the said alleged suit is brought into the Circuit Court for the County of Wayne for the convenience of the parties and their attorneys only."

I shall consider these reasons in the order named by the circuit judge.

First, as to the jurisdiction of the circuit court. The several circuit courts in this State are courts of general jurisdiction. The cause of action stated in the declaration is transitory. It is action of assumpsit, arising out of a contract claimed to have been performed in this State; and the Circuit Court for the County of Wayne has cognizance of suits upon contracts like the one sued upon irrespective of the locality of their origin, provided the parties, by service of process or otherwise, are before the court. Thompson v. Michigan Mut. Ben. Asso. 52 Mich. 522.

striking the case from the docket. In show-lows: "(1) That the said circuit court has no ing cause why the mandamus should not be granted, Judge Gartner sets out the opinion rendered by him at the time he ordered the case struck from the docket, as follows: "Upon the application made for a struck jury, it was made to appear that the plaintiffs were residents of this State. (3) That, if jurisdiction idents of and do business in the City of Philadelphia, and the defendants in the City of New York. The subject matter of the controversy arose and is located in the upper peninsula of this State. This is shown in the affidavit of counsel, wherein it is stated: 'Affiant further says that all the parties to this suit are nonresidents of this State; that the transaction involved in this suit arose in the upper peninsula of Michigan. It appears that the declaration was filed December 7, 1889, and the plea December 16 following. No process ever issued out of this court in said matter, nor was service had, and it is apparent that this forum wherein to litigate and determine this controversy is by consent of counsel, and selected for convenience.' This suit involves a large amount of money, the claim in the declaration being $1,000,000; and several weeks will have to be consumed in the trial thereof, involving the county in expense of thousands of dollars, and in a matter wherein the county has no interest, either in the parties or the subject matter. It certainly does not seem right that the people of this county should be made to bear the burden of expense of determining controversies between foreign litigants. The docket of this court is crowded, and we have more than we can do in determining matters wherein the jurisdiction of the court is undoubted. | This case has no business here, and an order will be entered striking it from the docket." He further states as follows: "That on information and belief this respondent states the fact to be that the relators were not obliged to come into this State to prosecute their right of action against said defendants. Neither did they casually find them, or any of them, in this State,... nor was the appearance or plea entered by the said defendants, or any of them, in obedience to any process issued out of said circuit court, nor in obedience to any notice of rule to plead indorsed upon a copy of the declaration filed in said circuit court at commencement of suit, . . . but said declaration and plea were filed, and said appearance was entered, in accordance with the previous stipulation of the parties.'

He further alleges that there are 922 cases upon the docket, of which 713 are for trial by jury at the present term, exclusive of criminal cases; tha the circuit court is overcrowded with business, and that the disposition of causes in said circuit court is delayed because of the crowded state of its docket; that the trial of the alleged cause would consume at least a month of the time of the judges and jury, and in that way would seriously interfere with the disposition of the legitimate business of the court, besides entailing upon the County of Wayne an expense of many thousands of dollars; and that he made the order complained of because he deemed the same in the interest of the administration of public justice, and of the public welfare. He summarizes his reasons for striking the cause from the docket as fol

Were the parties properly before the court? The suit was not commenced by either of the two methods authorized by § 7291, How. Stat. The petition asserts that the suit was commenced by the filing of the declaration (and a copy is attached to the petition). In so doing the plaintiffs submitted themselves to the jurisdiction of the court, as a party to the record (People v. McCaffrey, 75 Mich. 115), and the defendants, by appearing and pleading to the declaration, voluntarily submitted themselves likewise to the jurisdiction of the court. While it is true that no consent of parties can give a court jurisdiction of the subject matter of a suit which the court did not possess without such consent, it is equally true that a court can obtain jurisdiction over the person by the consent of such person; and service of process is always treated as waived by a general appearance in the cause, and pleading to the merits. And this is so although the defendant is a nonresident, and suable only in a particular place. Thompson v. Michigan Mut. Ben. Asso, supra.

There is no claim or pretense that this is a fictitious suit, or that it is not brought in good faith, to determine a genuine controversy of vital interest to the parties concerned. Section 7547 of Howell's Statutes enacts that issues of fact in actions upon contracts shall be tried in the county where one of the parties shall re side at the commencement of suit, unless, for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, the court shall deem it necessary to order such issues to be tried in some other designated county. This provision, however, applies only to residents.

We held in Atkins v. Borstler, 46 Mich. 553, that the Statute does not apply to nonresident

defendants, nor to a resident plaintiff suing a | want of jurisdiction. The supreme court renonresident defendant, from the necessity of versed this ruling, holding that the court had the case; that, if a nonresident could not be jurisdiction. See also, as to jurisdiction over a sued in any county where he could be found, nonresident defendant, Peabody v. Hamilton, he could not be sued at all. In that case the 106 Mass. 217; Molyneux v. Seymour, 30 Ga. plaintiff was a nonresident of the county where 440, 76 Am. Dec. 667, note; Wharton, Conf. the suit was brought, and the defendant was a L. SS 738, 739; Smith v. Gibson, 83 Ala. 284; nonresident of the State. The action was Roberts v. Knights, 7 Allen, 449; Barrell v. transitory, and we held the court had complete Benjamin, 15 Mass. 354; Miller v. Black, 2 jurisdiction. Jones, L. (N. C.) 341; Stramburg v. Heckman, Busb. L. 250; McCormick v. Pennsylvania R. Co. 49 N. Y. 303; Campbell v. Wilson, 6 Tex. 379.

joy property. He may inherit and transmit property. He may enter into contracts, to the same extent that a citizen of this State can do so, and in this his rights are guaranteed by the above provision of the Constitution; and I think that his right to bring suit in this State, in any case where a citizen of the State may, is also guaranteed and protected by this provision of the Constitution. This right does not depend upon the fact of the defendant's having property in this State which can be reached by execution. There are many cases where, in a suit between citizens of this State, there can be no property found out of which to satisfy an execution; nevertheless the plaintiff has a right to plant his suit, litigate his claims and obtain judgment. Wilson v. Martin-Wilson Automatic Fire-Alarm Co. 149 Mass. 24.

and undesirable for trial by an ordinary jury Defendants opposed this motion, and insisted there was no reason for having a special jury. On these facts appearing, the respondent refused to have the case kept in court at all, as one which the Wayne Circuit Court was not bound to try, and dismissed it. Relators seek a mandamus to restore the cause to the court and calendar.

Several reasons were discussed on the hearing before us, depending on very grave ques tions. In the view I take of the motion, it is not necessary to consider them all. The jurisdiction, in my view, depends entirely on the policy of the statutes of Michigan. Without passing on the point directly, I am inclined to think that, if the suit had been begun in the statutory way, the controversy might be litiThe fourth reason set out by the circuit gated in our courts somewhere against the judge affords no excuse for his declining to parties reached. But the controversy is fairly hear the case. None of the reasons alleged ap- presented, not whether our courts can entertain pear to me to be valid reasons for refusing to proceedings between nonresidents, but whether hear the case, or for striking it from the docket. this suit is brought at such a place and in such No court or judge has a lawful right to deny a way that the Wayne Circuit Court is legally to suitors the privilege of bringing and prose-bound to hear it, and has no option on the subcuting their suits, upon the ground that to en- | ject. If not legally bound to do so, we have tertain them will entail expense upon the no right to review its discretion in declining to county. The parties were rightfully before hear it. While we have statutes which to the Circuit Court for the County of Wayne. The court had full jurisdiction of the parties and the subject matter, and the circuit judge was in error in holding that the court had no jurisdiction, or that it had a discretion whether to entertain the suit or not.

A mandamus must issue as prayed for, directing Hon. George Gartner, Circuit Judge for the County of Wayne, to reinstate said cause upon the calendar of said court.

Morse and Grant, JJ., concurred.

Campbell, J., dissenting:

Relators are assignees of a firm consisting of Oliver W. Barnes, of New York City, Joseph W. Crawford, of Philadelphia, and Francis C. O'Reilly, of Orange, N. J. Relators both live in Pennsylvania. Their assignors had a contract for building a railroad in three of the upper peninsula counties, with Walston H. Brown and Samuel Thomas, of New York City, and Columbus R. Cummings and William B. Howard, of Chicago. None of these defendants have been in Michigan during the transactions to be referred to. Relators appear to have brought a suit of foreign attachment against the defendants in the upper peninsula, at Marquette, on which issue was joined. Subsequently, for reasons of convenience, this suit was discontinued, and by mutual understanding they attempted to bring a suit in the Circuit Court for Wayne County, filing a declaration on December 7, 1889. Defendants, by attorney, put in a plea to the merits on December 16, 1889. No service, or attempt at service, was made on any one of the defendants. Relators early in January, 1890, the case being on the term calendar for trial as a jury cause, applied to the respondent for a struck jury, setting up the circumstances of the controversy, and the wide range of inquiry necessary, and the residence of the parties, and the locality of the work done and in litigation, and claiming that all of the facts made it unsafe

some extent, at least, raise distinctions arising out of residence, I do not propose to consider them all particularly. There are some incidents of territorial jurisdiction which are universally recognized. Among these is the constitutional and elementary doctrine that, while every State may reach property actually within its borders, no personal judgment has the least validity unless made against a person actually served with process, or else appearing voluntarily to respond to a suit. It is equally well settled that no one, whether partner or in any other relation of joint interest, can subject any of his associates to such personal jurisdiction, either by suit or by arbitration. No one can be brought into court personally, without personal service or personal waiver of service. În order, therefore, to get a personal judgment against all these defendants, they must all be served or appear; and a judgment which does not bind them all personally is not entitled to faith and credit, under the Constitution of the United States. D'Arcy v. Ketchum, 52 U. S. 11 How. 165 [13 L. ed. 648].

It is plain that so long as these defendants are outside of Michigan, no court in Michigan can reach them. Service of Michigan process beyond the State is not due process of law, and is void for any jurisdictional purpose. Bischoff v. Wethered, 76 U. S. 9 Wall. 812 [19 L. ed. 829]; McEwan v. Zimmer, 38 Mich. 765.

Under our statutes, no service of process is valid outside of the county, upon any defendant, until jurisdiction has been obtained by service on some defendant within it. Turrill v. Walker, 4 Mich. 177; Denison v. Smith, 33 Mich. 155.

When a suit has been so far instituted as to fix the jurisdiction against any defendant, although the authorities are not entirely clear, there is usually no obstacle to a waiver of strict procedure by voluntary action under appearance. But I have found no support anywhere for the doctrine that jurisdiction itself can be given in any way or in any case not provided

Provision is also made for confession of judgment by virtue of power executed out of court, but the attorney's power to file a cognovit must be found in a special and separate appointment in writing, outside of the evidence of debt, and is strictly limited by its terms. § 7662. Parties are also allowed to agree upon a case stating only facts, and submit it to the circuit court for judgment on the law, without suit brought, if the controversy might be made the ground of an action; but it must be shown by affidavit that the controversy is real and in good faith. How. Stat. § 6469.

for by law; and there is no provision in statute | tration cannot cover questions of landed title. or common law which allows jurisdiction to § 8475. depend on the mere will of parties. The only provision in our laws which allows litigation to be commenced without process applies only to courts of justices of the peace, and its express authorization is not without significance, as creating a new method for the first time. By section 6823 of Howell's Statutes it is provided that suit may be instituted before a justice either by the voluntary appearance of "parties or by process." It may be remarked that there is no statutory or common-law rule which allows the original jurisdiction of any court to be called into exercise except by or through the party in person. It is not within the power of an attorney to represent his client in litigation not already pending. By section 6825, a voluntary suit is to be commenced "at the time when the parties shall appear before the justice and join issue." The statute also allows a debtor, with the consent of a creditor, to appear in person before a justice, and confess judgment without process. Section 6816. But this can only be done by a strict compliance with the Statute, and a judgment by confession in any way varying from the statutory method is void. Spear v. Carter, 1 Mich. 19; Wilson v. Davis, 1 Mich. 156; Beach v. Botsford, 1 Doug. (Mich.) 199; Clark v. Holmes, Id. 390.

But it was held in Goodrich v. Detroit, 12 Mich. 279, that such a case must leave no inference of fact to be drawn by the court, and that no further facts or evidence can be permitted to be introduced. No other cases of voluntary jurisdiction have been provided for, and none of these include any litigation of issues of fact.

When we look at the judiciary laws, we shall find them as precise in their directions as the common-law practice, but simplified in details. They provide both where and how suits shall be begun, and of what the courts shall have cognizance. It is declared that the circuit courts shall have power, and it shall be their The same rule applies to stay of execution of duty, to hear and determine all such matters justice's judgment. If given for any more "as may be lawfully brought into said courts.” than the statutory amount, it is absolutely void. It is further declared that the rules regulating Shadbolt v. Bronson, 1 Mich. 85. It is also their practice "shall govern the practice and held in Soper v. Fry, 37 Mich. 236, in accord-proceedings in the circuit courts, until altered ance with many other cases, that a partner has by the supreme court, or by their authority." no authority to confess judgment. § 6467.

The venue may be changed on good cause shown, which is a matter of judicial discretion, and which is in no case allowed to be done by act of parties. § 6468; Greeley v. Stilson, 27 Mich. 154.

The only specified case in which it is done, except by the local judge, is where that judge is disqualified; and then it must be done by regular proceedings before another public officer, which must conform to the Statute to be valid. § 6495; Shannon v. Smith, 31 Mich. 452.

Section 7291 provides two ways for beginning suits for debt or damages, which are (1) by original writ, and (2) by filing and service of declaration. It has been settled by our decisions that the suit is not begun till the declaration is served. Detroit Free Press Co. v. Bagg (Mich.) 44 N. W. Rep. 149 (Jan. Term, 1890).

There has been some doubt at common law whether an appearance can be entered at all before the time expires under the process served, and it seems then to be confined to cases where it is necessary for some purposes for the defendant; as, for example, to discharge appearance bail. But there is nowhere any recognition of the validity of a proceeding not commenced by legal process. It is not profitable to attempt to surinise all the reasons for legal rules, but courts have no right to disregard them. The government is interested in controlling litigation, and in preventing it, except under its own regulations. It involves many considerations which none but the Legislature can pass upon. Due process of law, under which property may be seized and sold, or whereby the public machinery is used at public expense, cannot depend on mere private will. Our laws have removed most of the And, as already suggested, service cannot merely formal impediments to suing, but they be made on any defendant out of the county have not allowed parties to get into court, ex- until it has been served and proof of service cept through the ways indicated. There is but filed in the county where the suit is pending. one method left to the parties for litigating dis-Denison v. Smith, 33 Mich. 155; Clark v. Lichputed facts in any but the regular way, and tenberg, 33 Mich. 307; Turrill v. Walker, 4 that is by arbitration. That is allowed to be Mich. 177. done, not in court, but out of court; but it may be submitted by acknowledgment before some public officer, and, if regularly executed, may be by the submission entitled to be entered as a judgment in a court designated. How. Stat. § 8474.

But, if not executed in strict accordance with law, such award cannot be received by any court as the foundation of a judgment (Gibson v. Burrows, 41 Mich. 713); and the rbi

And it has been settled that service cannot be made within the original county on anyone who is there as a witness, or on any other legal errand, which exempts him from process while away from his residence. Jacobson v. Hosmer, 76 Mich. 234.

By section 7547 it is provided that all transitory actions shall be tried in the residence of one or the other of the parties.

It was held in Haywood v. Johnson, 41 Mich.