152 Mass. 268 | Mass. | 1890
We do not perceive why the Superior Court sitting in Suffolk County had not acquired full jurisdiction of this action after it had been transferred there from Hampden County. Property of the defendant had been attached in Hampden County, and a notice was issued by the court in Suffolk County to the defendant, who had then and there appeared and answered to the merits of the cause. The action was transitory, and it was competent for the Superior Court, as a court of general jurisdiction, to try the same in any county of the State, unless objection was seasonably made thereto. The provisions of law regulating the bringing of actions in certain counties were intended for the benefit of defendants, in order to prevent inconvenience and vexation to them by being obliged to answer to actions in remote counties at the pleasure of parties bringing the suit; Pub. Sts. c. 161, §§ 1-12, St. 1885, c. 385, § 14; St. 1887, c. 347; but this is a matter which does not go to the general jurisdiction of the court, and must be held to have been waived, as must also any defect in the form or service of process when a defendant appears generally and answers to thé merits. Loomis v. Wadhams, 8 Gray, 557. Hastings v. Bolton, 1 Allen, 529.
Subsequently to the defendant’s appearance and general answer, he moved that the cause be dismissed from the Superior Court in Suffolk County, as wrongfully removed there from Hampden County, and “that the papers therein be returned to the Superior Court held within and for the county of Hampden aforesaid, the court in this county having no jurisdiction thereof.” This motion was granted with the assent of the plaintiffs. The defendant now objects, that the proceedings in Suffolk County went for nothing, because the court in that county had no jurisdiction of the cause, and the order of notice, appearance, and answer to the merits had no effect as a waiver except in Suffolk County. But although the defendant in his motion asserted that the court in Suffolk County had no jurisdiction, we do not understand that the court so held or should so have held. It was sufficient reason for granting a motion of this character,
The defendant further objects, that the case could not be transferred to the docket of the Superior Court for Hampden County without an order or leave of court reversing the order of transfer to Suffolk County previously made. We do not understand any such formal order to be necessary. When the court in Hampden County proceeds to deal with it, then the order theretofore made must be deemed to have been modified. While the Pub. Sts. e. 161, § 12, provide for the removal of actions when brought in the wrong county, the power possessed by the court is not exhausted by a single removal, if more than one should be found necessary in order to secure to the defendant the benefit intended. Nor, when an action is transitory, and depends solely on the residence of the defendant, and not upon the subject matter of the controversy, can we see that he can properly object that the action is erroneously before the court in a county to which by his own motion he has caused it to be removed. He cannot object to a jurisdiction which he has himself invited.
We have not discussed the question whether the exceptions from the orders overruling the motion to dismiss and the motion in arrest of judgment are properly before us, as, if so, they were properly refused. The court was entitled to deal with the case upon the general appearance and answer to the merits which the defendant had filed.
Exceptions overruled.
