The Opinion of the Court was delivered'by
Treat, J.This suit was commenced in the Jo Daviess Circuit Court, by Edwards, Rasin, and Cabanne against W, C. & N. Boilvin. The declaration was in indebitatus assumpsit, without any averment respecting the residence of the parties, or the place where the cause of action arose, or was made payable. Process was directed to the sheriff of Jo Daviess county, and was by him returned not found. A summons was then sent to Peoria county, and was there served on both of the defendants. W. C. Boilvin filed a plea of non assumpsit, to which the plaintiffs at once added a similiter. Three days afterwards, this entry was made in the record: “By agreement of the parties by their attorneys, it is ordered by the Court, that this cause be continued at the costs of the plaintiffs.” At a subsequent term, W. C. Boilvin obtained leave to withdraw his plea. The default of both defendants was then entered, and a jury assessed the plaintiffs’ damages at $1630'74, for which amount judgment was rendered.
The Boilvins prosecute a writ of errror to reverse the judgment.
The only point in the case is one of jurisdiction. As a general rule, under our statute, original process cannot issue to any other county than the one in which the suit is commenced. The present case is not within any of the exceptions of the rule, as laid down in the case of Key v. Collins, 1 Scam. 403, and confirmed by repeated decisions of this Court. This is not a case where the suit is brought in the county in which one of several defendants resides, so as to authorize the sending of process to a foreign county, to bring in the other defendants. Here, the process was directed to a foreign county, against all of the defendants. To justify the issuing of such process to Peoria county, the plaintiffs should have averred in their declaration, either, that the cause of action arose in the county of Jo Daviess, and that they resided there at the commencement of the suit, or that the contract on which the action was founded, was, by its terms, specifically made payable in the latter county.
In the absence of both of these allegations, there is nothing to sustain the jurisdiction, unless the defendants voluntarily submitted their persons to the jurisdiction of the Court. That unquestionably was done by W. C. Boilvin. He pleaded to the merits of the action, and thus conferred jurisdiction as far as he was concerned. It is insisted, that the entry on the record shows that his co-defendant entered his appearance and thereby invested the Court with complete jurisdiction over the case. This position is untenable. The order does not show a personal appearance of the parties, but an agreeement of the attorneys on record to continue the case. The attorney for the defence professed to appear for one defendant only. If he had been retained by the other defendant, he would in all probability have included him in the plea. The stipulation must be understood as made on behalf of the parties to the issue. If N. Boilvin had not been served with process, it would hardly be pretended that this entry of the clerk would afford any evidence of his appearance to the action. Why should it be evidence of an appearance in this case, when, without an actual appearance by him, the Court had no jurisdiction over his person. The jurisdiction of the Court in such a case ought clearly to appear on the face of the record, and not be left to inference or conjecture.
The judgment of the Circuit Court is reversed with costs.
Judgment reversed.