
    REYNOLDS v. MECOSTA CIRCUIT JUDGE.
    1. Mandamus — Propriety — Assault and Battery — Declaration — Averment oe Jurisdiction.
    On the trial of an action for assault and battery, defendant objected to the introduction of any evidence, on the ground that the declaration showed that the assault was committed in another county, and there was no averment that either of the parties resided in the county of the venue; the court invited plaintiff to amend in accordance with what counsel had stated to be the fact as to residence, and, on his declination, discharged the jury from further consideration of the case. Held, that mandamus would not issue to compel the setting aside of the order discharging the jury.
    2. Same — Review by Error.
    If such an averment was not strictly required, as plaintiff contends, either party may secure an order which will dispose of the case in the court below, and review the ruling on error, a proceeding in which they will be entitled to have strict legal rights determined.
    Mandamus by George A. Reynolds to compel Lewis G. Palmer, circuit judge of Mecosta county, to vacate an order dismissing an action for want of jurisdiction.
    Submitted April 16, 1907.
    (Calendar No. 22,230.)
    Writ denied May 18, 1907.
    
      Cogger & Broomfield, for relator.
   Per Curiam.

There are two reasons for refusing the writ. One is that in making the ruling complained about the circuit judge suggested and invited counsel for plaintiff (relator) to amend the declaration by adding the averment that plaintiff, or defendant, or both, resided in the county of Mecosta when the suit was begun, an averment of a fact asserted by counsel for relator to be true. This amendment, the making of which would have occupied but a moment of time, counsel declined to make, insisting, as they now insist, that strictly no such averment was required to be made. ■ In such a case, and this embodies the second reason, either party may secure an order which will dispose of the case in the court below and review the ruling on error, a proceeding in which they will be entitled to have strict legal rights determined.

Relator began a suit in the circuit court for the county of Mecosta to recover damages for injuries sustained by an assault and battery upon him by defendant, taking out a summons which was personally served upon defendant in said county; proof of such service being returned and filed with the clerk of the court. Defendant entered a general appearance. Plaintiff filed his declaration, in which it was averred that the assault was committed in Newaygo county. Defendant pleaded the general issue. The cause wás duly noticed for trial at the February, 1907, term of said court. The cause came on to be tried at said term of said court. A jury was impaneled and sworn. Counsel for plaintiff (relator ) made his opening statement to the jury, in which he stated that both plaintiff and defendant were residents of the township of Mecosta, in said Mecosta county. Counsel for defendant objected to the introduction of any evidence, on the ground that there was no allegation in the declaration that either plaintiff or defendant resided within the jurisdiction of the court. This objection was argued; the court reserving his opinion until the closing of proofs, at which time in an oral opinion, reported by the stenographer, the court ruled and held that it had no jurisdiction to try the case. He thereupon discharged the jury from any further consideration of the case. Thereafter an order was entered, reciting that counsel for defendant—

“ Objected to the taking of any testimony herein for the reason that the declaration contained no allegation as to the residence of the parties to said suit, and that the subject-matter of said suit occurred in Newaygo county. * * * The court sustained such objection and discharged the jury from further consideration of this cause, to which said ruling said plaintiff duly excepted. ”

Writ denied.  