(concurring.) A part of section 7 of the set of 1895 is ambiguous, in this: that it raises the question whether the clause, ‘ ‘and if a resident in the court nearest to ds residence, ” qualifies both clauses preceding it, or only he second. If both, then a single defendant should be sued *410in the district of his residence, and in the court thereof nearest his residence. If the second only, then a single defendant may be sued in the district of his residence, and in any court therein. But, if there are different defendants residing in different districts, suit should be instituted in any district in which a defendant resides, and in the court of the district nearest the residence of the defendant residing therein. In resolving this ambiguity, weight may be properly given to the course of congressional legislation in similar cases. In the Revised Statutes of the United States (section 740,) it is provided that, when a state contains more than one district, every suit, not of a local nature, in the Circuit or District Courts thereof, against a single defendant, an inhabitant oi such state, must be brought in the district where the defendant resides, but, if there are two or more defendants residing in, different districts, it may be brought in either district. By section 744 it is provided that, in the district of Iowa, all suits, not of a local nature, in the District Court against e single defendant, an inhabitant of the state, must be brought in the division of the district where he resides; but, if there are two or more defendants residing in different divisions oi the district, such suits may be brought in either division. B3 section 745 it was made the duty of the clerks in the District Courts of Kentucky, upon issuing original process in civil cases, to make it returnable to the court nearest to the countj of the resid ent defendant, or of that defendant whose countj is nearest a court, if he had information sufficient, and to im mediately send the papers to the clerk of the court to whicl the process was made returnable, and that the defendan-might, on motion, on or before tbe calling of the cause, have it transferred to the court to which it should have been sen-had the clerk known the residence of the defendant. It will be observed that in the Iowa district it was required that the defendant be sued in the division of the district in which he resided. Since 1878, congress has made divisions in judicial *411listricts in Ohio, Michigan, Mississippi, Tennessee, and Fexas. In each case it has required that a single defendant ihould be sued in the division of his residence. This uniform .nd unbroken manifestation of the legislative will in like iases should determine the construction in the present case, n which the language used makes two interpretations possi->le. I therefore conclude that in this jurisdiction a defendant resident in a district has the privilege of being sued herein in the court nearest his residence. Is this require-uent jurisdictional? In every instance in which congress Las made a division of a judicial district, it has defined the xact boundaries of the divisions, usually by including in hem counties by name. But once before, so far as I have ound, has it made divisions of a district without prescrib-ig the geographical limits of such divisions. In the case f the Kentucky district it conferred the privilege upon a ingle defendant of being sued in the court nearest his resience, but this privilege clearly was not jurisdictional. I oncur with the chief justice in tb e view that, in the act under onsideration, the requirement that the defendant should be ued in the court nearest his residence is directory, and not irisdictional; that he may, like defendants in the Kentucky istrict, upon proof of his residence to the court, have the ction transferred to the proper place for trial, but he can-ot, upon this ground, obtain a dismissal of the suit for want f jurisdiction. In the incomplete condition of the survey i this country, it would frequently be impossible without Leasurement to determine to which of the court points a de-mdant’s residence was nearest. To hold that a plaintiff ho desired, for instance, to attach property of a defendant pon the ground that he was removing it from the jurisdic-on of the court, must first determine, if need be by actual .easurement, the point to which the defendant was nearest, id then be subject to the risk of having his action dismissed ecause more accurate surveyors, or better instruments, *412showed the - court of suit not to be nearest defendant’s residence, and therefore not to have jurisdiction, is to impute a purpose to congress productive of hardship to’ litigants, by no means clearly deducible from the text of the act, and opposed to the legislative enactments in similar cases. Upor these grounds I concur in the result announced by the chiei justice — that the judgment should be reversed and the cause remanded — but, except as herein indicated, I do not assenl to the reasoning in his opinion; and, in my judgment, the trial court should, if objection to proceeding in the court a' Purcell is not withdrawn, transfer the cause to some cour nearest the residence of some one of the defendants.
Suit not brought in nearest court will not he dismissed.