Arnett v. Carol C. & Fred R. Smith, Inc.

• Decision Date: 13 June 1932
• Docket Number: 30018
• Citation: 145 So. 638,165 Miss. 53
• Parties: ARNETT et al. v. CAROL C. & FRED R. SMITH, INC., et al
• Court: Mississippi Supreme Court

145 So. 638

165 Miss. 53

ARNETT et al. v. CAROL C. & FRED R. SMITH, INC., et al

No. 30018

Supreme Court of Mississippi

June 13, 1932

Division A

Suggestion Of Error Sustained January 23, 1933.

APPEAL from circuit court of Lee county, HON. T. H. JOHNSTON, Judge.

On suggestion of error. Suggestion of error sustained, former opinion withdrawn, and judgment below affirmed.

Affirmed.

Blair & Anderson, of Tupelo, for appellant.

Immunity from service of civil process upon a suitor who is attending trial in a state court other than that of his residence seems to be based upon the grounds that a non-resident defendant should not be harrassed when attending court in a state other than his own by other lawsuits being brought against him; and thus interfere with his attendance and attention to the suit then on trial.

21 R C. L. 1305-1306.

This seems to be the holding of the majority of the court. However, minority holding seems to us to be the most reasonable, these courts holding that service of a summons amounts to simply a notice and does not obstruct the administration of justice nor interfere with the attendance or attention of a party to a suit then on trial.

21 R. C. L. 1307; Ryan v. Phillip Ebecke et al., 40 A.L.R. 88; Guynn v. McDanneld, 43 P. 74, 95 A. S. R. 158; Basley v. Basley, 113 Mo. 544, 21 S.W. 29; Baldwin v. Emerson, 16 R. I. 304, 27 A. S. R. 741; Capewell v. Sipe, 17 R. I. 475, 33, A. S. R. 890; Ellis v. DeGarmo, 17 R. I. 715, 19 L.R.A. 560.

Even though the process was served in this case on Carol C. Smith individually this privilege would not extend to him as president of the corporation.

Linn v. Hagen, 121 Ky. 627, 87 S.W. 1101.

Exemption of the witness from process, is a personal one and a witness who has come from a foreign jurisdiction to testify in a pending case may nevertheless be served in a representative capacity as administratrix.

Therefore even though the court should hold that Carol C. Smith, individually, was immune from process, still process could be served on his corporation by serving him as president.

Section 3157 of Hemingway's Code of 1927 provides where summons or citation, or the service thereof, is quashed on motion of the defendant the case may be continued for the term but the defendant shall be deemed to have entered his appearance to the succeeding term of the court.

The supreme court of Mississippi has held time and again that there is no such thing as special appearance in courts of Mississippi.

Standard Oil Co., etc., v. State, etc., 107 Miss. 377, 65 So. 468; Fisher v. Insurance Co., 112 Miss. 30, 72 So. 846; McCoy et al. v. Watson, 122 So. 368.

Powell, Harper & Jiggitts, of Jackson, for appellant.

Regardless of whether or not the process served upon Carol C. Smith, and Carol C. and Fred R. Smith, Inc., was defective or void, nevertheless the said Carol C. Smith and Carol C. and Fred R. Smith, Inc., are now within the jurisdiction of the circuit court of Lee county by virtue of the fact that they have entered their appearance in said court by filing the motion to quash the process.

Code of 1930, sec. 2999; Batson and Hatten Lbr. Co. v. McDowell, 159 Miss. 322.

Actions to recover damages for personal injuries are transitory in their nature, and may be prosecuted in other jurisdictions than where they occur.

Burns v. Grand Rapids & I. R. Co., 113 Ind. 169, 15 N.E. 230; Cincinnati, H. & D. R. Co. v. McMullen, 117 Ind. 439, 10 Am. St. Rep. 67, 20 N.E. 287; Morris v. Chicago, R. I. & P. R. Co., 65 Iowa 727, 54 Am. Rep. 39, 23 N.W. 143; Boyce v. Wabash R. Co., 63 Iowa 70, 50 Am. Rep. 730, 18 N.W. 673.

Leftwich & Tubb, of Aberdeen, for appellees.

Witness in attendance on a court outside of the territorial jurisdiction of their residence is immune from service of civil process, while attending court, and for a reasonable time before and after, in going to court and returning to their homes.

50 C. J., sec. 226, p. 547; 50 C. J., sec. 227, p. 548; 21 R. C. L., sec. 50 et seq., p. 1305 et seq.; Stewart v. Ramsay, 242 U.S. 128, 61 L.Ed. 192; Diamond v. Earle, 217 Mass. 499, 105 N.E. 363, Am. Ann. Cases 1915D, 984; Sofge v. Lowe, 131 Tenn. 626, 176 S.W. 106, L.R.A. 1916A, p. 734; Long v. Hawkne, 114 Md. 234, 79 A. 190, 42 L.R.A. (N.S.) 1101; 50 C. J. at sec. 231, p. 550; Hicks v. Besuchet, 7 N.D. 429, 75 N.W. 793, 66 Am. St. Rep. 665; Powers v. Arkadelphia Lumber Company, 61 Ark. 504, 54 Am. St. Rep. 276; Andrews v. Lembeck, 46 Ohio St. 38, 15 Am. St. Rep. 547; Palmer v. Rowan, 21 Neb. 452, 59 Am. Rep. 844; Thompson's case, 122 Mass. 428, 23 Am. Rep. 370; Stewart v. Ramsay, 242 U.S. 128, 61 L.Ed. 192; 50 C. J., p. 553, sec. 237; Mulhearn v. Press Publishing Company, 53 N.J.L. 153, 21 A. 186, 11 L.R.A. 101; Rix v. Sprague Canning Machinery Company, 157 Wis. 572, 147 N.W. 1001, 52 L.R.A. (N.S.) 583; 52 L. R.A. (N.S.) 582; 24 L.R.A. (N.S.) 276.

The effect of section 2999, Code of 1930 (sec. 3157, Hemingway's Code of 1927) is not to work a waiver of the jurisdictional rights of the parties. To otherwise construe the statute, would cause that section to nullify all statutes regulating venue of actions.

We think four statutes are applicable to the case at bar. They are: section 495 of the Code of 1930, which provides for the venue of actions of which the circuit court has original jurisdiction, and which provides that such action shall be commenced in the county in which the defendant or any of them may be found, or in the county where the cause of action may occur or accrue, a domestic corporation being suable only in the county where domiciled or where the cause of action occurred or accrued.

Section 4166 provides that any foreign corporation found doing business in this state shall be subject to suit here to the same extent that corporations of this state are.

Section 4167 provides how the process shall be served and provides that it shall be served upon any agent of the corporation found within the county where the suit is brought.

Section 2999 provides that a motion to quash is an appearance.

The court, in Turner v. Williams, 139 So. 606, presents this matter clearly. The court said in the course of its opinion, speaking of the statute and question here under discussion and the effect of the appearance of defendant:

This principle, however, has nothing to do with the right of a defendant to have a cause dismissed where the court is without jurisdiction of the subject-matter, or where there is a lack of territorial jurisdiction. In such case the defendant has the right to plead, in abatement of the cause, the want of jurisdiction; his appearance for the purpose is not a limited appearance. It is general; nevertheless it does not waive such want of jurisdiction.

It is well-established and it is unnecessary to cite authorities that statutes in derogation of common law must be strictly construed.

Gibson v. Hughes, 6 H. 315, and cases under subject "Statutes," section 239, Bobbs-Merrill, Miss. Digest and same subject and section Miss. Southern Digest, West Publishing Company; 5 R. C. L., sec. 7, page 813; 12 C. J., sec 15, page 186.

The exemption, being long and universally recognized, and not being statutory, can only be repealed by an express statute, which no state seems to have passed.

21 R. C. L., sec. 50, p. 1307; 50 C. J., sec. 226, p. 547; Cooper v. Wyman, 122 N.C. 784, 29 S.E. 947, 65 A. S. R. 731; Wilson v. Donaldson, 117 Ind. 356, 10 A. S. R. 48 and note; Murray v. Wilcox, 122 Iowa 188, 97 N.W. 1087, 101 Am. St. Rep. 263, 64 L.R.A. 534.

It is a principle of common law that privileges are not to be taken away by the general, comprehensive words of a statute; we cannot do by construction what is not clearly authorized by the legislature.

Andrews v. Lembeck, 46 Ohio St. 38, 15 Am. St. Rep. 547.

Depending on the local practice, the several methods required for asserting and claiming the immunity or privilege are; a motion to set aside the service, a plea in abatement, a plea to the jurisdiction and an answer presenting the single question of privilege. Motions to set aside the service filed in the court in which the action is pending are very generally recognized as an appropriate method to assert the privilege.

50 C. J. sec. 256, p. 561; 21 R. C. L., sec. 56, p. 1311; Cooper v. Wyman, 122 N.C. 784, 65 A. S. R. 731, 29 S.E. 947; Thornton v. American Writing-Machine Company, 83 Ga. 288, 9 S.E. 679, 20 Am. St. Rep. 320; Larned v. Griffin, 12 F. 590; Palmer v. Rowan, 21 Neb. 452, 59 Am. Rep. 844, 32 N.W. 210; Prentiss v. Commonwealth, 16 Am. Dec. 782; Smith v. Jones, 76 Maine 138, 49 Am. Rep. 598; Note 25 L.R.A., at page 734; Martin v. Bacon, 76 Ark. 158, 88 S.W. 863, 113 Am. St. Rep. 81; Murray v. Wilcox, 122 Iowa 188, 97 N.W. 1087, 101 Am. St. Rep. 263, 64 L.R.A. 534; Note at page 542 of 76 Am. St. Rep. and note beginning at page 534 for general discussion; Long v. Hawken, 114 Md. 234, 79 A. 129, 42 L.R.A. 1101; 42 L.R.A. (N.S.) 1109; Northwestern Casualty & Surety Co. v. Conway, 230 N.W. 548, 68 A.L.R. 1465 and note; Sofge v. Lowe, 131 Tenn. 626, 176, S.W. 106, 1916A L.R.A. 734.

Service of process on a privileged person is not void but is voidable. The privilege is a personal one and will be waived if not claimed at the proper time, as where the privileged person appears and pleads to the merits without taking exception or confesses judgment, but an appearance by answer which simply protests against the exercise of jurisdiction and claims no other right is not such an appearance as waives the objection.

21 R C. L., sec. 57, p. 1311; Prentis v. Commonwealth and note, 16 A. D. 782; Thornton v. American Writing Machine Co., 83 Ga. 288, 9 S.E. 679, 20 Am. St. Rep. 320; Matthews v. Puffer, 10 F. 606; Peters v. League, 13 Md....