Opinion
No. 33110.
April 4, 1938.
1. VENUE.
A suit against nonresidents temporarily engaged in road construction in state was required to be brought in county in which they were constructing road and in which process was served on three of them, notwithstanding that purchase-money notes for trucks sold to two of defendants were payable in another county (Code 1930, section 363).
2. EQUITY.
The disposal of pleadings is vested by statute largely in discretion of chancery court, including pleas to jurisdiction as well as others (Code 1930, section 379).
3. VENUE.
Where defendants, with their demurrers, filed motion to transfer cause to another county because of lack of jurisdiction and later filed motion to dismiss upon that ground, plea to jurisdiction was not waived by filing of demurrers, and chancellor did not abuse his discretion in dismissing bill for want of jurisdiction without having disposed of demurrers (Code 1930, section 379).
4. VENUE.
Where there was no statute authorizing chancery court to transfer case to court of proper venue, court, in dismissing for want of jurisdiction bill which had been filed in wrong county, did not thereby pass on merits of case.
APPEAL from chancery court of Clarke county. HON. A.B. AMIS, SR., Chancellor.
Wm. Edwards, of Shubuta, H.F. Case, of Quitman, and A.B. Case, of Waynesboro, for appellant.
The Chancellor held, when it was expressly called to his attention that the defendants had made a general appearance and had filed demurrers without questioning the venue, that while the ancient practice may have required that they raise the question of the improper venue at the outset that this requirement was abolished by the Chancery Practice Act of 1924, and that "All defenses may be made at one time." The complete answer to this last holding of the Chancellor is that the statute does not provide that all defenses may be made at one time. It provides that all defenses may be made in the answer. Further that an attack on the jurisdiction or venue is not a matter of defense, but a matter of abatement and that the Chancery Practice Act of 1924 did not change the rule of pleading nor the holdings of the court requiring these matters to be raised ante litem contestatam.
The venue was properly laid in Clarke County, Mississippi. The cause of action accrued in Clarke County, Mississippi. The defendant J.C. O'Connor Sons, a foreign corporation, doing business in Mississippi, had appointed Walker Wood, Secretary of State, its resident agent for service of process. It was therefore subject to suit in Clarke County in this case under authority of Masonite Corporation v. Burnham, 146 So. 292.
The other defendants were properly joined and with defendants Hursts being non-resident of Mississippi had no rights under any statute to have the venue laid in Wayne County or any other county.
67 C.J. 118, par. 188; Jefferson County Saving Bank v. Carland, 71 So. 126, 195 Ala. 279; Wagner v. Hallock, 3 Colo. 176; Silverstone v. London Assurance Corp., 142 N.W. 776, 176 Mich. 525; Atkins v. Borstler, 9 N.Y. 850, 46 Mich. 552; Linger v. Balfour, 101 Fla. 1529, 136 So. 433.
Defendants who were not inhabitants of state would not have statutory privilege of being sued in county of their residence.
Vernon's Ann. Civ. St., Arts. 1995, 2007; Kountze v. Smith, 97 S.W.2d 737.
All suits whether in rem or personam, against nonresidents may be brought in any county in the state.
State ex rel. Furocarriles Nacionales De Mexico v. Rutledge, 56 S.W.2d 28.
Any court of any county in the state acquires jurisdiction over non-residents traveling through the state on whom it can serve process.
Hines v. Moore, 168 Ga. 451, 148 S.E. 162; Sec. 363, Code of 1930; Gulf Refining Co. v. Moody, 172 Miss. 377, 160 So. 559; Nicholson v. G.M. N.R.R. Co., 172 So. 306; Clark v. L. N.R.R. Co., 130 So. 302.
It is held in the following cases that when the defendants are non-residents the venue may be laid in any county in the state which complainant shall designate in his complaint, namely:
Olson v. Osborne, 30 Minn. 44, 15 N.W. 876; Burke v. Frenkel, 97 N.Y. App. Div. 19, 89 N.Y. Supp. 621; Brown v. Lewis, 50 Or. 358, 92 P. 1058; Fratt v. Wilson, 30 Or. 542, 47 P. 706, 48 P. 356; Carolina Agency Co. v. Garlington, 85 S.C. 114, 67 S.E. 225; Berry v. Virginia State Ins. Co., 83 S.C. 13, 64 S.E. 859; Ivanusch v. Great Northern R. Co., 128 N.W. 333; Rains v. Match Co., 171 Cal. 326, 153 P. 239; Yumet v. Ins. Co., 29 Porto Rico, 850.
In Mississippi the law with regard to pleading is that of the common law insofar as it is not expressly changed by statute. Under the common law the venue could be laid in any county of the state. There is no statute in Mississippi which prescribes a contrary rule to that of the common for actions against non-residents.
Griffith's Mississippi Chancery Practice, sec. 155.
Venue in the case at bar is not jurisdictional.
67 C.J. 92, par. 148; Stanley v. Cruise, 134 Miss. 542, 99 So. 376; Catlett v. Drummond, 113 Miss. 450, 74 So. 323.
There was no want of territorial jurisdiction of the court.
American Historical Soc. v. Glenn, 227 N.Y.S. 174, 131 Misc. 291; Shuford v. Wynne, Love Co., 3 Tenn. App. 215; Griffith's Chancery Practice, sec. 85; La Varre v. Hall, 42 F.2d 65; Peoples Bank of Mobile v. Barrett, 216 Ala. 344, 113 So. 389; Nakdimen v. Brazie, 131 Ark. 144, 198 S.W. 524; Promis v. Duke, 281 P. 613, 208 Cal. 420; Higgins v. Higgins, 60 S.D. 576, 245 N.W. 397; Davey Tree Export Co. v. Ackelbeine, 25 S.W.2d 62, 233 Ky. 115.
The defendants waived any right to question the venue or jurisdiction of the court.
The Chancellor on dismissing complainant's bill held that territorial jurisdiction could not be waived. We respectfully submit that the defendants had no right to question the venue and therefore nothing to waive, but by their appearance they precluded themselves from any question as to the venue of the action.
Griffith's Chancery Practice, secs. 156 and 157; Estes v. Bank of Walnut Grove, 172 Miss. 499; 4 C.J. 1352, sec. 42; 67 C.J. 131, sec. 214; 3 Am. Jur. Appearance, secs. 31 to 34; M. O.R.R. Co. v. Swain, 164 Miss. 825, 145 So. 627; Neafsey v. Stone, 274 Mass. 235, 174 N.E. 278; Harvey v. Stewart, 260 Mich. 66, 244 N.W. 231; Lewis v. Esch, 279 N.Y.S. 77, 155 Misc. 212; Anderson Clayton Co. v. State ex rel. Allred, 122 Tex. 530, 62 S.W.2d 107; Arnett v. Carol C. Fred R. Smith, 142 So. 478, 145 So. 638, 165 Miss. 53; Wolff v. McGaugh, 57 So. 754.
The final decree, in any and all events, is erroneous in that it finally dismisses complainant's bill and cause of action for want of jurisdiction with prejudice.
Hager v. Coburn, 116 So. 540. Jeff Collins, of Laurel, for appellees.
Counsel says that the cause of action is a personal and transitory one, and accrued in Clarke County, Mississippi. But Section 151 of Griffith's Chancery Practice says that "the venue of suits in equity in our state is governed entirely by statute; and moreover since our courts of equity have never been hampered by the common law distinction between local and transitory actions, equity in the matter of venue looks to its own separate and independent statute."
Oliver v. Loie, 59 Miss. 323; Archibald v. R.R. Co., 66 Miss. 462, 6 So. 238; Section 363, Code of 1930.
Counsel questions the correctness of the statement of facts as set out by the Chancellor in his opinion. First, as to whether the cause of action accrued under the testimony. A careful examination of all the facts will demonstrate beyond a doubt that the Chancellor was entirely correct in his statement with reference to this particular point, but under the chancery venue statute this matter of whether the cause of action accrued is immaterial because "all cases not otherwise provided may be brought in the Chancery Court of any county where the defendant, or any necessary party defendant, may reside or be found," and Judge Griffith in his work on Chancery Practice, sec. 155, says: "It will be noted also that the statute would upon its face allow a suit in any county where one of the necessary parties may be found. In practical application this has reference only to nonresidents of the state, and to those who have no fixed place of residence within the state."
A careful reading of the facts in this case will demonstrate that if there were any cause of action accruing, it accrued altogether in Wayne County, and no part of it was in Clarke County.
Counsel cites Griffith's Chancery Practice, sec. 155, or a portion thereof, as follows: "It will be noted also that the statute upon its face would allow a suit in any county where the necessary parties may be found. In practical application this has reference only to non-residents of the state, and to others who have no fixed place of residence in the state." Certainly the word "this" in the second sentence above quoted refers to the words "may be found" and is just what we are arguing here, that one of the necessary parties to this suit must be found in Clarke County or there is no proper venue for this cause of action.
Counsel says there was no want of territorial jurisdiction of the court, and under this head cites as his only authority in Mississippi, Griffith's Chancery Practice, section 85, but an examination of that section does not bear out his contention, and if it did, it makes no difference in this case because there is no question but that the court must dismiss a suit in chancery where the venue is lacking upon proper motion. So whether you call it jurisdictional, territorial jurisdictional, or what not, it is a valuable right that every defendant has and the court will guarantee and respect, if he urges the question on motion to dismiss.
It is well settled that when the jurisdictional facts do not exist the proceedings must be dismissed, even though the non-resident defendant has appeared, provided that in his appearance he raises at the outset the defect as to jurisdiction, and thus not waive it.
Louis Werner Saw Mill Co. v. Sheffield, 42 So. 876; Sec. 484, Griffith's Chancery Practice.
In this case the court had no jurisdiction of the attachment in chancery because process did not properly summons the garnishee, and because the Mississippi Highway Department is not subject to garnishment and, therefore, the only thing that could be done, looking at it from this viewpoint, was to dismiss it for want of jurisdiction.
Estes v. Bank of Walnut Grove, 172 Miss. 499, 159 So. 104.
Section 363 of Code of 1930, which is the chancery court venue statute, is not affected by Section 11, Laws of 1928, and, therefore foreign corporation in chancery, when sued alone, can be sued only where they "may be found," that is where an agent may reside or be found, and no where else. Hence the argument in counsel's brief that the cause of action against O'Connor Sons occurred in Clarke County, and therefore the suit may be brought for that reason in Clarke County is beside the question.
Sanford v. Dixie Construction Co., 128 So. 887.
There is no allegation in the bill of complaint that the cause of action against the foreign corporation herein sued, accrued or occurred in Clarke County, Mississippi, nor is there any testimony to that effect.
The filing of the demurrers at the same time the question of venue was raised was not a waiver of the right. It was the first and only point urged. The venue could have been raised along with a demurrer and the answer, all inserted in the same paper, and yet the point would not have been waived provided the question was "called up" or "urged" first.
Section 379, Code of 1930.
E.R. Holmes, Jr., Assistant Attorney-General, for State Highway Commission.
Argued orally by Hal F. Case, for appellant, and by Jeff Collins, for appellee.
Appellant, Brashier, filed his bill in the chancery court of Clarke county against the appellee J.C. O'Connor Sons, a foreign corporation, and Earl Hurst, L.O. Hurst, and Maurice Hurst, nonresidents of the state, and the Mississippi State Highway Commission. On motion of defendants the cause was dismissed upon the ground that the territorial jurisdiction was in the chancery court of Wayne county and not in the chancery court of Clarke; from which decree the appellant prosecutes this appeal.
The bill alleged that J.C. O'Connor Sons had made a contract with the highway commission for the construction of a certain highway described in the bill; that subsequently and prior to the beginning of the work, Earl Hurst, as agent and representative of J.C. O'Connor Sons, being authorized so to do, subcontracted with appellant to do certain grading and hauling in connection with the project; that subsequently appellant undertook and did a large part of the work; that thereafter L.O. Hurst and Maurice Hurst purchased from appellant certain trucks for which they agreed to pay him the sum of $7,500; that J.C. O'Connor Sons were indebted to appellant in approximately the sum of $12,000, for work done in the performance of his contract, and that L.O. and Maurice Hurst were indebted to appellant in the sum of $2,992.50, the balance due on the purchase price of the trucks; that the highway commission was indebted to J.C. O'Connor Sons under their contract with it "in a large sum of money." The highway commission was attempted to be made a garnishee defendant for the purpose of impounding the money due J.C. O'Connor Sons. The three Hursts were found and served with summons in Wayne county, the summons for J.C. O'Connor Sons was served on Walker Wood, Secretary of State, and for the state highway commission on E.L. Atkinson, its secretary. But the highway commission was neither served with a copy of the bill, nor was there indorsed on the summons the nature and object of the suit and that it was for the purpose of subjecting any effects in the custody of the highway commission belonging to J.C. O'Connor Sons, or any indebtedness of such highway commission to J.C. O'Connor Sons, to appellant's demand, as required by section 174, Code of 1930. There was nothing on the face of the process to show that it was a proceeding by attachment in chancery for the purpose of impounding any amount due by the highway commission to J.C. O'Connor Sons to the payment of appellant's claim.
The bill alleged that J.C. O'Connor Sons was a foreign corporation domiciled at Fort Wayne, Ind., and that the three Hursts were nonresidents of this state, residing temporarily in Wayne county at Waynesboro, and that the Secretary of State had been duly appointed by J.C. O'Connor Sons as resident agent for the purpose of service of process. All the defendants demurred to the bill, and at the same time made a motion to change the venue to Wayne county, one ground of which was "the bill of complaint shows on its face that it is a matter for the determination of the Chancery Court of Wayne County." Later all the defendants joined in the motion, which was sustained to dismiss the bill, one ground of which was that the territorial jurisdiction of the cause was in the chancery court of Wayne county, and not in the chancery court of Clarke county.
Oral testimony was taken on the motion to dismiss. It showed, as the bill alleged, that the defendants J.C. O'Connor Sons and the three Hursts were all nonresidents of Mississippi and residents of the state of Indiana; that at the time of the filing of the bill and service of summons on the three Hursts they were temporarily in Wayne county engaged in road construction in that county. The evidence showed, however, that the notes for the purchase price of the trucks were payable at a bank in Clarke county.
The chancery courts in this state have their own venue statute, section 363, Code of 1930. The jurisdiction in this case is covered by the last clause of that statute which, in substance, is that all cases not otherwise provided for may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found. Griffith's Mississippi Chancery Practice, sections 151 and 155; Oliver v. Loye, 59 Miss. 320; Archibald v. Railroad Co., 66 Miss. 424, 6 So. 238. As stated, three of the defendants, the Hursts, were found in Wayne county where process was served on them. The fact that the purchase-money notes for the trucks referred to were payable in another county had nothing to do with the territorial jurisdiction of the court.
Appellant argues that the plea to the jurisdiction was waived by the filing of the demurrers. Section 379, Code of 1930, makes radical changes in the former rules of chancery pleading and practice. It abolishes all pleas in bar and in abatement, and all defenses are permitted to be made a part of the answer. The disposal of pleadings is vested by the statute largely in the discretion of the chancery court, and that is true of pleas to the jurisdiction as well as others. Griffith's Mississippi Chancery Practice, section 337; Estes v. Bank of Walnut Grove, 172 Miss. 499, 159 So. 104. As stated, with the demurrers the defendants filed a motion to transfer the cause to the chancery court of Wayne county, one ground of which was a lack of territorial jurisdiction in the chancery court of Clarke county. Later, they filed a motion to dismiss upon that ground. The court, in its decree sustaining the motion, used this language: "be and the same is hereby dismissed for want of jurisdiction and venue." Although the demurrers were pending and undisposed of, the motion to dismiss was first called up and acted upon. By this method of procedure the appellant was not put to any unnecessary delay and expense. We are of the opinion that there was no abuse of discretion by the chancellor in disposing of the matter in this manner.
Appellant argues that the court in dismissing the bill necessarily passed on the merits of the case. That is not true; the only question involved and passed on was one of venue.
There is no statute authorizing the court to transfer a case of this kind to the chancery court of the proper venue; there ought to be, however.
Affirmed.