Hall v. Roehr & Co.

Hill, C. J.

1. Under the mandatory provisions of the constitution of this State — article 6, section 16 (Civil Code of 1910, § 6543) — the venue of all civil eases is in the county where the defendant resides,'except in certain cases specified in paragraphs 1 to 5 (inclusive) of the said article. A trover suit is a civil ease, and is not among the exceptions to the general rule. Where, therefore, a timely and sufficient plea to the jurisdiction of the court was filed, on the ground that the defendant was not a resident of the county in which the suit was *380 brought, it was error for the trial judge to strike this plea, and the issue therein made should have been submitted to the jury.

Decided January 15, 1912. Trover; from city court of Bainbridge — W. V. Cugter, judge pro hac vice. June 22, 1911. E. 8. Longley, for plaintiff in error. J. G. Hale, W. H. Krause, contra.

2. The giving of a bond for the forthcoming of the property in a trover suit, where bail is required, is in a sense an appearance by the defendant, yet it is not such appearance and pleading to the merits of the case as would constitute a waiver of jurisdiction. To complete such waiver there must not only be a general appearance, but also pleading to the merits. Civil Code (1910), § 5664.

Judgment reversed.