state, does business in another state, does not change the place of its citizenship.'

44. WHERE CROSS-COMPLAINT IS FILED.-If new parties are brought in by a cross-complaint, they must be served in the same manner as if they were proceeded against by original complaint. But if the cross-complaint is against other plaintiffs or defendants, already before the court, service may be made on their attorneys by leaving with such attorneys a copy of such complaint, as in case of other pleadings in the action, or in such other manner as may be provided by statute.

In some of the states, service of pleadings after the complaint need not be made. Therefore, where a party is already before the court, he must take notice of all pleadings filed in the action without service. But where a new and original cause of action, between defendants jointly sued, is set up by a cross-complaint filed by one of such defendants against the other, and the pleadings are not required to be served, it is held that a summons must issue."

Where, under such a practice, the matters set up in the cross-complaint are alleged in the original complaint, no summons is necessary on the former, although the defendant against whom the cross-complaint is directed has suffered a default before it is filed.*

Where all pleadings are required to be served on the parties or their attorneys, a different rule prevails. Under such a practice, there must be service, but not of a sumThe service of a copy of the cross-complaint on the parties before the court, by service of the summons on the original complaint, and against whom the crosscomplaint is directed, is sufficient.5

mons.

1 Railroad Co. v. Koontz, 104 U. S. 5, 12; St. Clair v. Cox, 106 U. S. 350; 1 Sup. Ct. Rep. 354.

2 Pattison v. Vaughan, 40 Ind. 253.

31 Works Ind. Pr. & Pl., sec. 208; Joyce v. Whitney, 57 Ind. 550; State v. Ennis, 74 Ind. 17.

1 1 Works Pr. & Pl., sec. 208; Pattison v. Vaughan, 40 Ind. 353; Bevier v. Kahn, 111 Ind. 200; 12 N. E. Rep. 169.

5 White v. Patton, 87 Cal. 151.

But where a stranger to the cause, as originally brought, comes in by leave of court and sets up a cause of action against one of the original parties, summons must issue in his behalf against the party he is proceeding against.1

Under the equity practice in the federal courts, a crossbill is regarded as auxiliary to the original bill, and service may be made on the attorneys of the parties against whom it is directed, although such party may be a nonresident.2

CHAPTER IV.

VENUE.

45. Commencement of action in wrong place and its effects.

46. Grounds for change of venue.

47. Application for change and its effects.

48. Other necessary proceedings to procure transfer.

49. Waiver as to venue.

50. Counter motion to retain case.

51. Order for change and its effects. 52. Remanding cause.

45. COMMENCEMENT OF ACTION IN WRONG PLACE AND ITS EFFECTS.—The subject of territorial jurisdiction, generally, has been considered.' It is the purpose of this chapter to discuss the effect on the jurisdiction of the court of bringing an action in the wrong place, and the right of a party to change the venue on that and other accounts, and the effect of proceedings for a change upon the jurisdiction of the court.

Statutes usually provide specifically where all actions belonging to certain designated classes shall be brought. At common law, the venue must be laid in the proper county in local actions, or the court is without jurisdiction. But this rule has been materially modified in many if not most of the states, by statutory provisions to the effect that, where the action is brought in the wrong county, the defendant must, within a designated time, demand that the same be transferred to the proper county, or the court in which it is brought shall have jurisdiction. Therefore, the effects resulting from the commence

1 Ante, sec. 15.

2 Woodward v. Hanchett, 52 Wis. 482; 9 N. W. Rep. 468; Fletcher v. Stowell, 28 Pac. Rep. 326; Houck v. Lasher, 17 How. Pr. 520; West v. Walker, 77 Wis. 557; 46 N. W. Rep. 819; Blackford v. Lehigh Val. R. Co., 53 N. J. L. 56; 20 Atl. Rep. 735.

ment of an action in the wrong county are very materially modified by the rule, considered elsewhere, that where the question is as to the jurisdiction of the person, a party may submit his person to the jurisdiction of the court by appearing therein and proceeding in the action.1

But the mere appearance to the action, as we shall see directly, does not always amount to such a submission to the jurisdiction of the court as will prevent the party from insisting upon the removal of the cause to the proper county.

Usually the time when the application for a change to the proper county shall be made is fixed by statute, and must be made within the time fixed or the right is lost." And if the party is properly served with process he can not avoid the legal effect of a judgment against him, in a wrong county in the state, by failing to appear. He is bound to appear and ask for a removal of the cause to the proper county or the judgment will be binding upon him. Or question the jurisdiction in some other recognized mode.5

If there is no statute providing that a change of venue may be had on this ground, and limiting the party to such remedy, the jurisdiction of the court may be attacked by plea in abatement, or motion to dismiss, and the party can not be driven to an application for a change of venue.

But in this connection the distinction between transitory actions, which affect the question of jurisdiction of the person, and actions in rem, in which the place of trial affects the jurisdiction of the subject-matter, is important to be remembered. In the former, jurisdiction may be given by consent or appearance. In the latter, appearance or consent can not give jurisdiction." In the former, the party may relieve himself from a trial and judgment against him by timely objection, and if he

1 Ante, secs. 13, 15, 43. ♦ Territory v. Judge of District Court, 5 Dak. 275; 38 N. W. Rep. 439. 5 Ante, sec. 22; Drainage Com'rs e. Giffin, 134 Ill. 330; 25 N. E. Rep.

2 Post, sec. 49. 3 Post, secs. 47, 49.

6 Ante, sec. 22.

7 Ante, sec. 13.

8 Ante, sec. 12.

does not the judgment is valid.' In the latter, the court has no jurisdiction, even where the party appears and consents that it may act, and any judgment it may render with the parties all before it is absolutely void. But as to the place of trial of local actions, within the state, the legislature may change this rule and put the two kinds of actions on the same footing.3 And in some of the states this has been done.

Under statutes which require an application for a change to be made in local actions, and provide that if this is not done the court shall have power to proceed with the action, the same rule of waiver applies as in purely personal or transitory actions. And it is generally held that the statute confining the party to his remedy by motion for a change of venue, general in its terms, is applicable alike to local as well as to transitory actions.5

1 Post, sec. 49.

2

Ante, sec. 26.

3 Spalding v. Kelly, 66 Mich. 693; 33 N. W. Rep. 803.

* Post, sec. 49; Woodward v. Hanchett, 52 Wis. 482; 9 N. W. Rep. 468.

5 Woodward v. Hanchett, 52 Wis. 482; 9 N. W. Rep. 468; Fletcher v. Stowell, 28 Pac. Rep. 326; Houck v. Lasher, 17 How. Prac. 520; Territory. Judge of District Court, 5 Dak. 275; 38 N. W. Rep. 439; West v. Walker, 77 Wis. 557; 46 N. W. Rep. 819.

In Woodward v. Hanchett, supra, the court said:

"This section was clearly intended to relate to all kinds of actions, and is applicable as well to actions which are local in their nature as to actions which are by statute made local by reason of the residence of the defendant or other cause, and under its provisions any action may, notwithstanding its local character, be tried in the county designated in the summons or complaint, unless the defendant causes the same to be changed in the manner pointed out in said section. The change made by the revision as well as by the code, in respect to the place of trial, is a radical one, and under its provisions no objection can now be taken either by pleading or on the trial that the action is not brought in the proper county. Such objection is one that must be taken in limine, and if not then taken is waived. Pereles v. Albert, 12 Wis. 666; Lane v. Burdick, 17 Wis. 92. The provisions of chapter 243, Laws of 1862, were not embodied in the Revised Statutes of 1878, and that chapter was repealed. The section above cited has provided two methods of changing the place of trial to the proper county when the plaintiff has brought his action in the wrong county. The first method is by demand of the defendant and the written consent of the plaintiff made and given within specified times, and when the demand is prop