Nagle v. Nagle , 3 Grant 155 ( 1855 )

Opinion of the court delivered

by Lewis, C. J.

By the 16th and 17th Charles II. ch. 8, which is in force in Pennsylvania, it is provided that, “ after verdict judgment shall not be stayed or reversed 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.” The statute of 4th Ann, ch.'16, s. 2, extends this provision to judgments by confession, nil (Licit, non et sum informatus. These statutes have been construed to extend to cases where- the cause has been improperly tried in a wrong court, and whether the objection appears on the record or not. Hence it follows (says Mr. Chitty in his excellent work on pleading, page 284), “ that even in local and penal actions in the superior courts the only modes of objecting to the venue are by demurrer, or at the trial as ground of non suit, except in the action of ejectment, in which alone a difficulty would arise, with respect to the execution, because the sheriff of one county cannot deliver the possession of land in another.” 7 T. R. 583, 587; 2 East, 580 ; 1 Saund. 447; 1 Ch. PI. 284.

"What is this but a trial of a local suit in the wrong county ? Conceding for the argument, but -without deciding the point, that the wife ought to have filed her libel for divorce in the county where her husband resides, the right of the husband to a trial in that county was a personal convenience which he might waive. The objection touches his privileges rather than the jurisdiction of the court, for the latter extends over the subject matter of divorces. In this case the service of the subpoena was accepted by the husband without objection, and an answer was filed denying the allegations of the libel, and praying- that it may be dismissed with costs for that reason. A replication to his answer was also accepted and issue joined upon it by the husband. In this condition the cause was continued for more than two years. When the court was about to proceed to the trial, the answer was withdrawn, and a plea to the jurisdiction was filed. The plea is not on .the paper book, and it is alleged that it has been lost. We have therefore no means of knowing what facts were set forth in it. If it contained nothing but an allegation that the parties resided in Berks County at the time of the injury, and that the libellant has ever since resided in Schuylkill County, it was properly overruled. After delaying her for so long a period of time, and putting her to the trouble of preparing her cause for trial in Schuylkill County, it would have been grossly unjust to turn her out of court on such an objection.

There is no error in the decree, and it is therefore affirmed.

Decree affirmed with costs.