Whether the action is one so far affecting the title to, or an estate in, lands, or for the determination in any form of any right or interest therein as to require the same to be brought in the county where the land is situated, is one about which the authorities are not agreed. But the better rule seems to be that the action falls within the last clause of the codes referred to, and is an action to determine an interest in lands.1

It is held by the Supreme Court of the United States that the tribunals of one state may compel the performance of contracts to convey property situate in another state. And so it is held in some of the states.3

It has been held that when an action is tried and judgment rendered in a court not having jurisdiction, and an appeal is taken to a court having original jurisdiction of the subject-matter of the action, and the parties appear and consent to a trial there, the judgment of the latter court will be binding. But this was upon the ground that the court where the cause was last tried had jurisdiction of the subject-matter, and while it could not obtain jurisdiction by virtue of the appeal from a court having no jurisdiction, the parties having appeared and consented to a trial in that court, the case must be treated as if it had been originally commenced in that court and the parties had voluntarily appeared in the action and gone to trial. But in such a case a writ issued out of the court in which the case was commenced can not be amended, on appeal to another court having original jurisdiction, so as to make it a writ issuing from the latter court, and thus give such court jurisdiction."

11 Work's Ind. Pr. & Pl., sec. 180; Parker v. McAllister, 14 Ind. 12; Vail v. Jones, 31 Ind. 467; Franklin v. Dutton, 79 Cal. 605; 21 Pac. Rep. 964; but see Coon v. Cook, 6 Ind. 268; Dehart v. Dehart, 15 Ind. 167; Morgan v. Bell, 28 Pac. Rep. 925.

2 Massie v. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25; Pennoyer v. Neff, 95 U. S. 723; Watts v. Waddle, 6 Pet. 389.

3 Seixas v. King, 39 La. Ann. 510; 2 So. Rep. 416; Burnley v. Stevenson, 24 Ohio St. 478; 15 Am. Rep. 621.

Randolph County v. Ralls, 18 Ill. 29.

See Harrington v. Heath, 15 Ohio St. 483. 6 Osgood. Thurston, 23 Pick. (Mass.) 110.

Personal actions are transitory, and, as a rule, must be brought in the court having jurisdiction over the territory in which the defendant resides.'

There are many statutory exceptions to this rule, however. For example, it is sometimes provided that foreign. corporations may be sued in the courts of the plaintiff's residence.2

So it is sometimes provided by statute that actions upon contract may be brought in the courts of the place where the contract was entered into. And, as a rule, in a case of fraud, trust, or contract, the jurisdiction of a court of equity is sustainable wherever the person is found, though the decree may affect lands without its jurisdiction.*

An action may be brought in a state where both the plaintiff and defendant reside, although the cause of action, as in case of a tort, arose in a foreign country.

It is held in New York that the courts of that state may, in their discretion, entertain jurisdiction of an action for personal injuries between persons actually domiciled in that state when the action is brought, though the injury was committed in a foreign state, of which the parties were still citizens; but that the courts are not bound to entertain jurisdiction in such cases."

Statutory provisions modifying the general rule that personal actions must be brought in the county where the defendants, or some of them, reside are most frequently directed against corporations, and particularly foreign corporations, though they are not confined to this class of cases. They are usually enacted with a view of preventing hardships resulting to injured parties from the requirement that they shall follow the defendant to the place of his residence in order to obtain their rights through

Williams v. Welton, 28 Ohio St. 464.

2 Flynn

v. Central R. R. of New Jersey, 15 N. Y. Sup. 328; 20 N. Y. Civ. Proc. Rep. 179.

3

Kenney v. Greer, 13 Ill. 436; 54 Am. Dec. 439.

4

Massie v. Watts, 6 Cranch, 148.

Tupper v. Morin, 12 N. Y. Sup. 310; 25 Abb. New Cases, 398.

'Burdick v. Freeman, 120 N. Y. 420; 24 N. E. Rep. 949.

the courts.

These statutes are so various that it would be impossible to give, in a work of this kind, even a general synopsis of the legislation on this subject.

It is sometimes provided that where a defendant is a non-resident the plaintiff, being a resident, may choose his forum and bring the action in any county in the state.'

In divorce cases it is usually provided by statute that the action may be brought where either the husband or wife have their bona fide residence.2

If the court in which the action is brought has not jurisdiction of the subject-matter, an appellate court in which the case must be tried de novo is also without jurisdiction, although it would have had original jurisdiction of the action.3

13. JURISDICTION OF THE PERSON.-The question as to the place where personal actions shall be commenced is considered elsewhere. This section relates to the means, generally, by which jurisdiction of the person may be acquired. There is a most material difference, in this respect, between jurisdiction of the subject-matter and of the person. As has been shown, jurisdiction of the subject-matter can not be conferred upon a court by the consent of parties."

It is otherwise as to jurisdiction of the person. If a court has jurisdiction of the subject-matter, a party may voluntarily submit himself to such jurisdiction, or may, by failing to object thereto at the proper time, waive his right to contest such jurisdiction. And, if a court has lost juris

McCauley v. Murdock, 97 Ind. 229, 232.

2 Cooley's Const. Lim., 5th ed., 495.

3 Pritchard v. Bartholomew, 45 Ind. 219; Mays v. Dooley, 59 Ind. 287; Stringham v. Board of Supervisors, 24 Wis. 594. Post, sec. 21.

Post, sec. 15.

5

Ante, sec. 12.

6 Freeman on Judg., sec. 119; 12 Am. & Eng. Enc. of Law, 299; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315, 321; Montgomery ". Town of Scott, 32 Wis. 252; Damp v. Town of Dane, 29 Wis. 419, 431; McCauley v. Murdock, 97 Ind. 219, 232; Kenney v. Greer, 13 Ill. 432, 435; 54 Am.

diction of the person, it may be restored in the same

way.

Consent is given by a general appearance, in person or by attorney, entered in the action, or by some act equivalent thereto, such as the filing of a pleading in the case or some similar act recognizing the authority of the court to proceed in the action. But, unless it is expressly provided to the contrary, as it is in some of the states, a special appearance may be entered for the purpose of questioning whether the court has acquired jurisdiction, by the service of process, as required by law, without giving the court jurisdiction to proceed further than to determine whether it has acquired jurisdiction or not.3

The appearance to be special must be on jurisdictional grounds. If upon any other ground it is a general appearance and gives the court jurisdiction.*

In Iowa a party appearing to object to the jurisdiction of the court can not afterward object to the sufficiency of the service of notice. So under a statute of Texas it is held that if the citation or service is quashed on motion. of the defendant, he shall be deemed to have entered his appearance to the action."

Dec. 439; Brown v. Webber, 6 Cush. (Mass.) 560; McCormick v. Penn. Cent. etc., R. R., 49 N. Y. 303. Post, sec. 22.

12 Am. & Eng. Enc. of Law, 299; Taylor v. Atlantic & Pac. R. R. Co.,

68 Mo. 397.

Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315, 321; Carpenter v. Shepardson, 43 Wis. 406, 412; Damp v. Town of Dane, 29 Wis. 419, 431; Smith . Curtis, 7 Cal. 584; McCormick v. Penn. Cent, R. R. Co., 49 N. Y. 303; Wasson v. Cone, 86 Ill. 46; Fee v. Big Sand Iron Co., 13 Ohio St. 563; Slauter v. Hallowell, 90 Ind. 286; Roy . Union Mercantile Co., 26 Pac. Rep. 996.

'Branner v. Chapman, 11 Kan. 118; New Albany, etc., R. R. Co. v. Combs, 13 Ind. 490; Linden Gravel M. Co. v. Sheplar, 53 Cal. 245; Southern Pac. R. R. Co. v. Superior Court Kern Co., 59 Cal. 471; Green v. Green, 42 Kan. 654; 22 Pac. Rep. 730; Nelson r. Campbell, 1 Wash. St. 261; 24 Pac. Rep. 539; Murphy v. Ames, 1 Mon. 276. Post, sec. 22.

'Green v. Green, 42 Kan. 654; 22 Pac. Rep. 730; Burdette v. Corgan, 26 Kan. 102; Grantier v. Rosecrance, 27 Wis. 491: Roy v. Union Mercantile Co., 26 Pac. Rep. 996; Alderson v. White, 32 Wis. 308.

5 Church r. Crossman, 49 Ia. 444.

Rabb v. Rogers, 67 Tex. 335; 3 S. W. Rep. 303; Central & M. R. Co. v. Morris, 68 Tex. 49; 3 S. W. Rep. 457.

In England a special mode of appearance by delivering to the proper officer a memorandum in writing is provided for. An appearance may be entered by attorney. But the effect of an appearance by an unauthorized attorney depends upon the place of residence of the party, and whether the court is one of general or inferior or special jurisdiction. The weight of authority is to the effect that the want of authority of an attorney to appear can not be shown in a collateral proceeding to defeat a judgment. founded on such appearance except upon the ground of fraud. Nor can such authority be questioned, after judgment, in a direct proceeding, where the judgment is one of a court of superior jurisdiction, and the party is a resident of the state, except upon a showing that he has a good defense, and then, in order to obtain relief, he must come in and submit himself to the jurisdiction, and all proceedings in his favor are subject to the intervening rights of third parties. In this class of cases the party is simply permitted to come in and have the case opened up and to make his defense. But where the defendant is a non-resident of the state in which the judgment is rendered, and has had no notice of the pendency of the action, and has not been within the jurisdiction of the court. during the pendency of the action, he is entitled to have the judgment set aside, absolutely, upon a showing that the appearance of the attorney was unauthorized.3

1 Wilson's Jud. Acts, order 12, sec. 8, p. 204; Foulke's Ac. in Sup. Ct. 63.

2 Post, sec. 23; Baggott v. Mullen, 32 Ind. 332.

3 1 Work's Ind. Prac. and Pl., secs. 227, 228, 230; Wiley v. Pratt, 23 Ind. 633; Brown v. Nichols, 42 N. Y. 30; Denton . Noyes, 6 Johns. 298; 5 Am. Dec. 237, 244; Sterne v. Bentley, 3 How. Pr. 331; Critchfield v. Porter, 3 Ohio, 519; Coon v. Welborn, 83 Ind. 230; Bush v. Bush, 46 Ind. 70; Cleveland v. Hopkins, 55 Wis. 387; 13 N. W. Rep. 225; Graham v. Spencer, 14 Fed. Rep. 605; Bagott v. Mullen, 32 Ind. 332.

In Wiley v. Pratt, the rule is thus stated: "Where a judgment is recovered in a court of general jurisdiction against a defendant, and the record shows that an attorney of the court appeared for the defendant and filed an answer, the jurisdiction of the court can not be controverted, unless it be by proof of fraud, which we are not in this case required to decide, or that the defendant was not a citizen of the state,