The appellee brought this action against the appellant to recover the value of work and labor alleged to have been performed by him at the special instance and request of appellant.
The appellant filed a plea in abatement in which it is averred that at the time of the commencement of the action and at the time of filing the answer, the appellant was a non-resident of the State of Indiana, and a resident of Jefferson County in the State of Kentucky; that the appellee was also a resident of the State of Kentucky; that in said State there were courts which were open and had jurisdiction to try the matters in controversy between them. A demurrer was sustained to this pleading. This ruling is the only error assigned in this appeal.
It is provided by section 314,Burns Rev. 1894, (Section 312,R. S. 1881) that an action may be commenced against and process served upon a non-resident in any county where he may be found. If a non-resident be voluntarily within the jurisdiction of the courts of this State, he may be sued in any county where he may be *348found. Brown v. Underhill, 4 Ind. App. 77; Wilson v. Donaldson, 117 Ind. 356; Reed v. Browning, 130 Ind. 575.
Filed March 13, 1895.The courts of this State are open equally to residents and non-residents. Pittsburgh, etc., R. W. Co. v. Jacobs, 8 Ind. App. 556. The fact that the appellee was a nonresident of Indiana did not deprive him of the right to bring this action.
Judgment affirmed with five per centum penalty.
Davis and Gavin, J. J., absent.