
    Parker vs. Porter and wife.
    
    Where the circuit courts, (in an equity proceeding) have not jurisdiction of the person of a defendant, as where process is executed upon him in another county the court, upon motion will dismiss the bill, without requiring a plea in abatement.
    The bill in this case was filed in the circuit court of Carroll county. The subject matter of the bill is unnecessary to be set forth, as the argument at the bar, and the decision of the court were based upon the correctness of the decision of the circuit court in dismissing the bill. The bill alleged that the defendants resided in Maury county. Subpcenas were issued to that county, and were there executed upon the defendants. At the return term of the circuit court for Carroll, the defendants appeared and moved the court to dismiss the bill for want of jurisdiction over their persons. The motion was sustained, and the bill dismissed for that cause. From this decree, the complainant appealed to this court.
    
      
      J, JWKernon, for complainant.
    In this case it is clear tljat the circuit court of Carroll county, had jurisdiction over the subject matter of the bill, and as com-ts of equity act in personam, would have jurisdiction of the persons of the defendants, if brought properly into court, as by process executed upon them in the county. But in this case the process was executed in Maury county, and the question presented, is, whether the appearance of the defendant without pleading the matter in abatement, is not a waiver of the irregularity, or, in other words, whether a motion to dismiss can be sustained. In the two cases in Cook’s Rep. (87 and 339,) the matter was pleaded in abatement, and it is confidently believed, that this is the only way known to the law, by which advantage can be taken of the want of local jurisdiction in the court.
    At law the court would not strike a cause from the docket, because of the service of process out of the jurisdiction of the court. It is a personal privilege and must be pleaded.
    By the act of 1801, ch. 6, sec. 13, 15 and 16,'the defendants are bound to plead, answer or demur to the bill.
    
      •M. Brown, for the defendants.
    The circuit court did right in dismissing the bill. Defendants resided in Maury county, and the subpcena was there executed upon them. Their place of residence is stated in the bill. The court had no jurisdiction over their persons. Cook’s Rep. 87, Childress vs. Perkins: same Book, 339.
    The statutes of 1825, ch. 22, and 1827, ch. 42, gave the chancery district courts jurisdiction in such case, but not the circuit courts.
   Green, J.

delivered the opinion of himself, and Ca-tron, Ch. J. .The bill was filed in the circuit court of Carroll county, and states the residence of the defendants to be in the county of Maury. Process was served on the defendants in Maury county. The circuit court dismissed the bill for want of jurisdiction, on the motion of defendants.

It is clear in this case the court had no jurisdiction over the persons of the defendants. Cooke Rep. 87, 339. The acts of 1825, ch. 22, and 1827, ch. 42, apply only to the chancery courts. They do not extend the jurisdiction of the circuit courts. The words “chancery courts,” used in these acts, do not mean all courts having and exercising chancery powers, but must mean the district chancery courts, as contradistinguished from the circuit courts.

The court did right in dismissing the bill. On its face its shows the residence of the defendants, and the return of the process shows that it was served upon them in Maury county. Why proceed, when the court was thus compelled to perceive it had no jurisdiction; why require a plea in abatement? A plea states facts not appearing in the bill. In this case the plea would only be a repetition of the facts stated in the bill, it would have disclosed no additional fact, and was wholly useless and unnecessary. The court was bound to stop, so soon as it saw it had no jurisdiction df the case.

Whyte, J. dissented.

Decree affirmed.  