
    Jacob Peters vs. William Finney et al.
    Where, in an attachment suit at law, the defendant has plead in abatement the non-joinder of other co-contractors, and afterwards on his motion the attachment is quashed, but is afterwards reinstated by the high court of errors and appeals, and on its return to the circuit court the defendant files a plea to the jurisdiction, on the ground that both plaintiff and defendant were nonresidents, and withdraws his plea in abatement; held, that it was not error for the court below on this state of fact to reject the plea to the jurisdiction.
    A party cannot plead a personal plea to the jurisdiction of the court, one not going to the subject matter of the suit, after he has plead to the action. The statute allowing pleas to the party, or the character of the party, does not alter the time of pleading ; that remains as before.
    Attachments at law are but process ; non-residents were not allowed them ; but if the defendant, when attached by a.non-resident, did not assert his right not to be sued in that mode, But plead to the attachment, he admitted the jurisdiction over him, and could not afterwards object to it.
    
    
      IN error from the circuit court of Warren county; Hon. George Coalter, judge.
    William Finney, John Finney, and John Lee sued out a writ of attachment on the 11th of May, 1840, for $512-60, against Jacob Peters, described as the captain and owner of the steamboat Manchester, returnable to the October term, 1840, of the circuit court of Warren county. In the affidavit made by John Lee, one of the plaintiffs, he states that they are citizens of the state of Missouri.
    The writ of attachment was issued, and levied with others on the steamboat Manchester, which was sold, as appears by the sheriff’s return on the writ of attachment, by him, by virtue of the writ; leaving a balance of $914 in his hands, after paying expenses.
    The declaration in assumpsit for goods, wares, and merchandise was filed to the October term, 1840; when an order of publication was directed. At the April term, 1841, the defendant, • by Alexander R. Depen, Esq., his attorney, plead in abatement the non-joinder, as co-defendant, one C. T. Buckley, an alleged joint contractor. G. W. A. Culton swore to the truth of the plea. A demurrer to this plea and joinder therein were filed, when, on the 30th- day of the April term, 1841, the defendant moved to quash the attachment. The motion was sustained; but this court, at its July term, 1843, reversed the decision of the circuit court, and reinstated the attachment. On the 16th day of April, 1844, the order of reversal was filed in the court below; and on the 3d day of June of that year, the defendant filed a plea to the jurisdiction in these words, viz: “And the said Jacob Peters, in his proper person, comes and says, that this court ought not to have or take further cognizance of the action aforesaid, because he says that the said supposed'cause of action, and each and every of them (if any such have accrued to the said Finney, Lee & Co.) accrued to the said plaintiffs out of the jurisdiction of this court, that is to say, at, to wit, at St. Louis, in the state of Missouri, and not at Vicksburg, in' the county of Warren and state of Mississippi, or elsewhere within the jurisdiction of this court; and that the said plaintiffs were, at the time of suing out the writ of attachment in said suit, citizens and residents of the city of St. Louis, in the state of Missouri ; and that the said defendant, Jacob Peters, was a citizen of the town of Pekin, in the county of Tazwell, and state of Illinois; and that the steamboat Manchester, attached in pursuance of said writ of attachment, was, at the time of suing out said writ, plying and trading between the ports of St. Louis, in the state of Missouri, and New Orleans, in the state of Louisiana, upon the Mississippi river, which river is a navigable stream: and said boat so plying and trading, as aforesaid, and while on her voyage on the river aforesaid, stopped temporarily at the port of Yicksburg, in the state of Mississippi, when and where the said Jacob Peters was wrongfully attached, and this the said Jacob Peters is ready to verify; wherefore, he prays judgment, whether this court can or will take further cognizance in the action aforesaid, &c. Jacob PeteRS.”
    “Personally appeared in open court, G. W. Guitón, and made oath, and says, that the plea hereunto annexed is true in substance and in fact. May 31, 1844.
    R. R. Randolph, Clerk.”
    On the 4th of June, 1S44, the plaintiffs below obtained leave to withdraw their demurrer, and filed a replication to the plea in abatement, denying Buckley’s liability.
    The record then recites, that “ at a court held in and for the county of Warren aforesaid, on Friday the 12th day of June, A. D. one thousand eight hundred and forty-six, on motion of the defendant, by his attorney, leave is granted him to withdraw the plea in abatement filed in this case; and on motion of the plaintiff’s attorney, the defendant’s plea to the jurisdiction in this case is rejected; exceptions by defendant’s attorney.”
    The record proceeds as follows: “ Afterwards, to wit, at a circuit court continued and held as aforesaid, on Friday, the 19th day of June, in the year last aforesaid, came the plaintiffs by their attorney, and it appearing to the court that the attachment herein has been duly levied on certain property of the said defendant, and the same not having been replevied by the owner thereof, and publication having been made against said defendant according to law; therefore it is considered by the court that the said plaintiffs recover of the said defendants such damages as they haye sustained in the premises ; but because those damages are unknown to the court, it is ordered that a jury be émpannelled to inquire thereof.” To the rejection of the plea to the jurisdiction and, the rendition of the judgment by default, the defendant excepted, and the bill of exceptions was regularly sealed. It recites the motion to reject the plea to the jurisdiction, and the reasons urged against its rejection, which were, that it had been on file for two years without objection, and depositions on original and cross interrogatories had been taken to sustain it, were on file, and proved all its allegations. The depositions are made parts of the bill of exceptions, are addressed to the question of residence of the parties and the place where the boat was attached, were taken on original and cross interrogatories, and show conclusively that the plaintiffs were citizens of Missouri, and the defendants of Illinois, at the time of the suing out of the attachment at law.
    The court rejected the plea to the jurisdiction, on the ground that the plea in abatement had been previously filed.
    The jury assessed the damages at $512'65, and the defendant prosecuted this writ of error.
    
      Smedes, for plaintiff in error,
    Cited Hosey v. Ferriere, 1 S. & M. 663; State v. Roberts, 1 Play. 176; Wagoner v. Grove, Cam. & Nor. R. 516 ; Hart v. Mallett, 2 Hay. 136; Burroughs v. McNeill, 2 Dev. & Batt. Eq. 297; Wright v. Guy, 10 Serg. & R. 277; 1 Binn. 142; Bingham v. Cabbot, 3 Dal. 19; Ketland v. The Cassius, 2 Dali. 368; Wyatt v. The Judge, 7 Port. 37; Bell v. Tombigbee Railroad Co., 4 S. & M. 549; Bloom v. Burdiclc, 1 Hill, 130; Moore v. Wait, 1 Binn. 220; Latham v. Edgerton, 9 Cowen, 229 ; Borden v. Fitch, 15 John. 141; Mills v. Martin, 19 lb. 33; Amos v. Allnutt, 2 S. & M. 218; 12 lb. 664. See also Kincaid v. Francis, Cooke’s Rep. 49; Preston v. Boston, 12 Pick. 7; Slate v. Turner, 1 Wright, R. 20; Coffin v. Tracy, 3 Caines, R. 129; Strieker v. 
      Mott, 6 Wend. 465; Norton v. Cook, 9 Conn. R. 314; Bissell v. Briggs, 9 Mass. R. 469 ; Pawling v. Bird, 13 John. R. 207; Moore v. Spademan, 12 Serg. & R. 287; 6 East, R. 583 ; Lawrence v. Smith, 5 Mass. 362 ; 1 Chit. PI. 476, 479 ; Rea v. Hayden, 3 Mass. R. 24; Jones v. Winchester, 6 N. Hamp. R. 497. See Kincaid v. Francis, Cooke’s R. 49; Dumoussay v. Delevit, 3 Har. & McH. 151; Wood v. Mann, 1 Sumn. 578; De Wolf v. Rabaud, 1 Pet.’ 476; Childres v. Perkins, Cooke, 87; Pharis y. Cornier, 3 S. & M. 87; James v. Dowell, 7 lb. 333.
    
      D. Mayes, for defendant in error,
    Cited Hutch. Code, 853; 1 Stat. L. of Kentucky, 325; Hutch. Code, 846; Shields v. Perkins, 2 Bibb, 228; Colyer v. Hutch-ings, lb. 405; Tarlton v. Briscoe, 4 lb. 73; Adams v. Hogden, 1 Monroe, 87; Beale’s Adm’rs v. School’s Ex’rs, 1 A. K. Mar. 477; Hulett v. Hall’s Adm’rs, Litt. Sel. Cas. 83; Bowling -v. Ewings, 3 A. K. Mar. 616; Bell y. Morehead, lb. 159 ; Calk v. Daniel, 4 Litt. 287. See also Roberts v. Tennell, 4 Litt. 287; Malone v. Clark, 2 Hill, N. Y. R. 657; 1 Petersd. Ab. tit. Appearance, A; Smith y. Herring, 10 S. & M. 520; Co. Lit. 303; Graham’s Prae. 224; 1 Johns. Cas. 101; 2 Cowen, 417; Smith v. Commercial Bank of Rodney, 6 S. & M. 85, and authorities referred to in that case; Tidd’s Prac. 564; 1 Chit. R. 525, 526, in notis ; 4 Taunt. R. 66S.
   Mr. Chief Justice ShakKey

delivered the opinion of the court.

Finney, Lee & Co. commenced this suit by attachment in May, 1840, returnable to the October term of the circuit court of Warren county. At the April term, 1841, the defendant pleaded in abatement that the promises in the declaration mentioned were made by the defendant jointly with C. F. Buckley, still living, and not by defendant alone. The plaintiff demurred, and defendant joined in demurrer. Before the demurrer was disposed of, at the same term of the court, the defendant moved to quash the attachment for various reasons set forth in the motion. This motion was sustained, and from that decision the plaintiff appealed. At the July term, 1843, of this court, the judgment of the circuit court quashing the attachment was reversed, and at April term, 1844, the certificate of reversal was filed in the circuit court. As the judgment on the motion alone was reversed, there being no other judgment in. the case, the cause stood when remanded as it had stood when the motion was made, to wit, on demurrer to the plea in abatement. After the cause had remained in court in this condition from April, 1844, until June of that year, the defendant then filed, without leave of court, a plea to the jurisdiction, thiat both plaintiff and defendant were non-residents, and suit by attachment would not lie. Without taking any notice of this plea, the plaintiff obtained leave to withdraw his demurrer to the plea in abatement first pleaded, and took issue. Two years after this had been done, to wit, in June, 1846, after depositions had been taken, the defendant obtained leave to withdraw the plea in abatement on which the plaintiff had taken issue. The cause then stood without any plea, unless the plea to the jurisdiction, put in as above stated, be considered as properly pleaded. But after the defendant had withdrawn his plea in abatement for non-joinder of parties, the plaintiff moved to reject the plea to this jurisdiction, and this motion was sustained. The cause then stood without answer, and a default was taken and writ of inquiry awarded. The defendant, however, exce'pted to the decision of the court rejecting the plea to the jurisdiction, and on this exception the case comes up. The question is, was the plea to the jurisdiction properly rejected under the circumstances. We think it undoubtedly was.

The plea, under different circumstances, would have been a proper one. But the statute does not so far subvert the settled order of pleading, as to make it proper at any stage of the cause for the party to plead to the jurisdiction of the court. This cause had been litigated four years before this plea was put in. It had gone through the circuit court, as well as through this court. There are two statutory provisions on this subject. By the first, the defendant is authorized to plead as many matters of law or fact as he may judge necessary to his defence, provided he be not permitted to demur and plead to the whole. H. <fc H. Dig. 589. By the second, the defendant is authorized to plead as many pleas in bar of the action as he may choose, although some may be to the party or the character of the party. Ib. 597. These statutes allow the party to exercise his discretion as to the matter pleaded, but not the time of pleading. Alliston v. Lindsey, just decided. The general rule is, that a plea to the jurisdiction must precede a plea to the action, as by pleading to the action the party admits the jurisdiction of the court, and waives the objection, as he may do when it does not go to the subject matter of the suit.

But it is contended, that it is never too late to question the jurisdiction. This is not true, when the objection is personal. The attachment is but process; and objections to process are generally waived by appearance to the action. The court in this instance had jurisdiction of the subject matter; it was a matter of contract, transitory in its character. But suit could not be instituted by this particular process, because the remedy by attachment is not given to non-residents; not prohibited to them, but not given. . It was the defendant’s privilege not to submit to be sued by attachment; as between himself and the plaintiffs it was not the proper process, but he could waive this objection, either directly, or impliedly. It was but a question of jurisdiction over the person, and by adopting a particular course of pleading, he admits that the court has jurisdiction over him; that he is properly in court. The doctrine that consent does not give jurisdiction has no application; it is only true as to the subject matter of the suit. But consent will give jurisdiction over the person. The objection that the plea had been filed two years, and therefore could not be rejected, amounts to nothing. It was not filed by leave of the court, nor had it been noticed by the other party; it had not in fact been received as a plea.

Judgment affirmed.  