
    Raymon vs. Reed.
    APPEAL PROM NICHOLAS CIRCUIT.
    1. A suit was brought in the county of defendant’s residence; process issued to that county and an adjoining county, and served in the latter county in time for judgment, but not in the county of defendant’s residence in time for judgment: Held, that it was error to render judgment upon the service in the foreign county. (Code of Practice, chap. 5, secs. 107, 110.)
    2. The 'defendant having objected to the judgment, and the court overruling his objection, it was proper to bring the case up for correction of the judgment; but if the court had not decided the question in that form it would have been necessary to have moved the court for its correction, as a clerical misprision, before bringing the case to this court.
    The facts of the case are stated in the opinion of the court. Rep.
    
    
      T. E. Quisenberry for appellant—
    The court below erred in rendering judgment against the appellant. By the Code of Practice, chapter 5, section 107, it is expressly declared that where the action is against a single defendant the plaintiff shall not be entitled to judgment unless the defendant is served with the summons in the county in which the action is brought, unless the defendant appears and fails to object for the want of proper service. If the defendant does appear and objects, as was done by appellant in this case, the court shall not render judgment. According to section 10, chapter 5, of the Code of Practice, it is provided that a summons served out of the county in which the suit is brought is good whenever the defendant, residing in the county where the suit is brought, removes to another county ; in such case the summons may follow the defendant, and service out of the county in which the action is brought has the same effect as if served in the county where the suit is commenced. In no other case is service good out of the county where the suit is commenced.
    In the case of Potlinger vs. Mayfield, 14 B. Monroe, 647, this court decided that where there are several defendants there must be service of process on some one of them, or some one of them must reside in the county where the suit is brought.
    The defendant, now appellant, was attending the Bourbon Court as a witness, and could not have been sued there. See proviso of section 603 of the Code.) He was not absconding or concealing himself; if such had been the case the appellee could have had his attachment. (See sec. 88, art. 2.)
    The objection to the judgment was duly made and decided by the court below, and it is now asked that this court correct that error of the circuit court.
    
      F. Munger for appellee—
    Raymon resided in Nicholas county, where this suit was brought; he resided there when the judgment was rendered. He objected to the judgment, but the court overruled his objection under the authority of section 107, chapter 5, of the Code of Practice. Section 106 provides that “every other action may be brought in any county in which the defendant resides or is summoned,” which embraces this case. Section 107 says: “Where any action embraced by the last section is against a single defendant the plaintiff shall not be entitled to judgment against him, on the service of a summons in any other county than that in which the action is brought, unless he resided in that county at the commencement of the action.” Therefore, if the defendant resided where the action was brought, judgment may be rendered; for if suit may be brought where defendant resides judgment may be rendered, as well as in cases where suit must be brought in certain counties, judgment may be rendered, although the summons is executed in another county.
    
      The case of Pottinger vs. Mayfield, 14 B. Monroe, 647, is relied on to show that where one of several defendants is served with process out of the county where the suit is brought, and another defendant resides in the county where the suit is brought, that judgment may be rendered against the defendant served out of the county. The principle there settled is the same as that involved in this case.
    The 10th section of the Code, chapter 5, recognizes as valid the service of process in any county provided the defendant resides in the county where the suit is brought when it is commenced. The same effect is given to the service as if in the county where the suit brought. What is the meaning of this language?' It is believed it has reference to the time when the party must answer, &c.; to the time of trial, &c. It would be giving the language an effect beyond its meaning to say it restricted the meaning of sections 106 and 107.
    
      J. Harlan on the same side—
    The determination of the question in this case depends upon the construction which the court may give to the provisions of Code of Practice, title Y, entitled, “The county in which an action may be brought.”
    The first section supposed to be applicable is section 106, which reads: “Every other action may be brought in any county in which the defendant, or one of several defendants resides or is summoned.”
    As there is but one defendant in this case the words “or one of several defendants” should be omitted, and the section will then read : “Every other action [which includes this] may be brought in any county in which the defendant resides or is summoned.”
    The order — which was intended for a bill of exceptions — states that the defendant resided in the county of Nicholas at the commencement of the action, and still resides there. I submit whether the case is not within the very letter of the section, and also within its spirit. By serving the process on Raymon in the county of Bourbon it did not, in anywise, prejudice his rights of defense. The purpose and object of the Code was to prevent a debtor from avoiding the process of the court of the county of his residence by going into another county, and returning within ten days before the commencement of the term of the court, and thus prevent honest creditors from obtaining judgments for their money.
    The construction for which I contend is fortified and sustained by the two following sections, 107 and 108:
    ¡Section 107 is to the effect that the plaintiff shall not be entitled to a judgment on the service of a summons in any other in which the action is brought, unless he. resided in that county at the commencement of the action. The meaning of which is, if he resided in the county in which the action was commenced, and was served in another county in proper time, the plaintiff shall be entitled to a judgment.
    Section 108 is applicable to a case where there are several defendants, and no judgment shall be rendered unless one of the defendants was summoned in the county where the action is brought, or resided there at the commencement of the action; but if either exists the plaintiff shall be entitled to a judgment.
    Section 110 is and was intended to embrace the 3d section of the act of February 4, 1812. (1 Move-head <f Biown, 342.)
    That act and section 110 authorizes process to be sent to any county in the state where the defendant removes from the county in which the action is brought after the commencement thereof. This section does not apply to the present case, but the previous sections were intended to extend the facilities of obtaining judgments against defaulting debtors, in cases where no defense would be interposed.
    
      
      Residence of the defendant gives jurisdiction to the court. The sections referred to do not require both residence and service of process in the county in which the action is brought. Service in any county is good if the defendant resided in the county where the action is brought. If the defendant is sued in a county in which he does not reside a service of process in that county will authorize a judgment. I refer to the case of Pottinger vs. Mayfield, 14 B. Monroe, 610, as sustaining the construction contended for.
    The sections referred to by the court in that case were taken from the first edition of the Code, but are the same referred to in this brief but have different numbers.
    December 10.
   Judge Crenshaw

delivered the opinion of the Court.

This suit was brought against Raymon by Reed in the Nicholas Circuit Court, where Raymon resided, upon a note executed by Raymon for $2,231 25. Process was issued to the county of Nicholas, and also to the county of Bourbon; each summons was executed ; the one which issued to Bourbon was served more than ten days before the ensuing term of the Nicholas Circuit Court, but the one which issued to Nicholas was not served in time for a judgment at the next Court.

Upon the calling of the cause at the ensuing term the defendant appeared and showed that he resided in the county of Nicholas at the institution of the suit, and still resided there, and that he was attending the Bourbon Court as a witness when the summons was executed in that county; and he objected to the. rendition of the judgment against him, but the court overruled his objection, and gave judgment against him.

The question is, was the judgment properly rendered upon the service of the process in Bourbon — ■ that served in Nicholas not being in time for a judgment at that term?

1. A suit was brought iu the county of defemlant’s residence; process issued to that county and an adjoining county. and served in the latter county in time for judgment, but not in the county of defendant’s residence in time for judgment: Held, that it was error to render judgment upon the service in the foreign eouu ty. (Code of Vrac. ckap. 5, secs. 107, 110.)

2. The defendant having objected to the judgment, and the court overruling his objection, it was proper to bring the case up for correction of the judgment; but if me court had not decided the question in that form, it would have been necessary to have moved the court for its corree tion, as a clerical misprison, before bringing the case to this court.

The law applicable to this question is found in the Code, title V, sections 107 and 110. These two sections are upon the same subject, and must be construed together. And although a literal construction of section 107, without a consideration, at the same time, of section 110, might authorize the conclusion that service of process upon the. defendant in another county than that in which the suit was brought— the latter being the county of his residence — yet, when these two sections are considered'together, we think the conclusion is clear and indisputable that the commencement of the suit in the county of the defendant’s residence, and the service of process in another county, will not authorize the judgment, unless the defendant had removed from the county of his residence after the commencement of the suit therein, which it is not pretended he did. Any other construction would render section 110 entirely nugatory and unmeaning.

After the appearance of the defendant we think the judgment against him would have been authorized had he failed to object to the same; but he appeared and objected.

Had there been no appearance to the action the judgment would have been regarded as premature, and a clerical misprision, and no appeal to this court would have been authorized until the Circuit Court had refused, upon motion, to set aside the judgment. But the defendant having appeared and objected to the rendition of judgment, and the court having decided upon its propriety, the error is an error of the court, and not a mere clerical misprision.

Wherefore the judgment is reversed, and the cause remanded with directions that the judgment be set aside, and for farther proceedings.  