Batson & Hatten Lumber Co. v. McDowell

• Decision Date: 12 January 1931
• Docket Number: 29123
• Citation: Batson & Hatten Lumber Co. v. McDowell, 159 Miss. 322, 131 So. 880 (Miss. 1931)
• Parties: BATSON & HATTEN LUMBER CO. v. MCDOWELL
• Court: Mississippi Supreme Court

131 So. 880

159 Miss. 322

BATSON & HATTEN LUMBER CO. v. MCDOWELL

No. 29123

Supreme Court of Mississippi

January 12, 1931

Division B

1 CORPORATIONS.

Employee's suit for personal injuries against employer, a domestic corporation, held not maintainable in county where corporation was not domiciled or other than where injuries were received (Code 1930, section 495).

2 PROCESS. Motion to quash service of summons held not waiver of jurisdiction over subject-matter or venue of action (Code 1930, section 2999).

Code 1906, section 3946, Code 1930, section 2999, provides that where summons or service thereof is quashed on motion of defendant, case may be continued for the term, but defendant shall be deemed to have entered his appearance to the succeeding term.

3 PROCESS.

Motion to quash summons confers jurisdiction of person of defendant as effectually as if he had been legally served with process (Code 1930, section 2999).

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county, HON. W. J. PACK, Judge.

Action by Fred McDowell against the Batson & Hatten Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed, and action dismissed.

Reversed and dismissed.

H. H. Parker, of Lyman, and Stevens & Heidelberg, of Hattiesburg, for appellant.

A defendant who files a motion to quash the service of process does not thereby waive the question of venue or jurisdiction of the court.

Section 2999 of the Mississippi Code of 1930; York v. State, 11 S.W. 869; St. Louis, A. & T. Ry. Co. v. Whitley, 13 S.W. 853; Texas & Pacific Ry. Co. v. Childs et al., 40 S.W. 41.

The appearance of a nonresident defendant by attorney, to plead to the jurisdiction of the court only, and the withdrawal of such appearance by leave of the court, is not a submission of defendant's person to the jurisdiction of the court, but leaves the case as if there had been no appearance.

Graham v. Spencer, 14 F. 603; Mars et al. v. Oro Fino Min. Co. et al., 65 N.W. 19; Cooper v. Colo. & S. Ry. Co. (Tex.), 298 S.W. 613; Horton v. Lone Star Gas Co. (Tex.), 19 S.W. (2d), 617; Turner v. Ephraim, S.W.2d 608; Winniford v. Holloman, 227 S.W. 111.

F. M. Morris and S. A. Hall, both of Hattiesburg, for appellee.

When a defendant files a motion to quash a process, it thereby enters its appearance for all purposes and cannot afterwards object to the jurisdiction of the court or venue.

Section 495, Code 1930; Illinois Central R. R. Co. v. Swanson, 92 Miss. 468, 46 So. 83; Standard Oil Co. of Kentucky v. State, 107 Miss. 377, 65 So. 468; Fisher v. Pacific Mutual Life Ins. Co., 112 Miss. 30, 72 So. 846; McCoy v. Watson, 153 Miss. 416, 121 So. 116; 154 Miss. 307, 122 So. 368.

Argued orally by R. W. Heidelberg, for appellant.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Forrest county, to recover damages for an injury received by him, alleged to have been caused by the negligence of appellant while the appellee was engaged about his duties as employe of the appellant. There was a trial, resulting in a verdict, and judgment in the sum of five hundred dollars. From that judgment appellant prosecuted this appeal.

Several grounds for the reversal of the judgment are assigned and argued. We notice only one, because the proper solution of that results in a judgment here reversing the judgment appealed from, and a dismissal of the cause. The question decided is one of venue. The action was brought in Forrest county; appellant is a domestic corporation domiciled in Pearl River county, with its chief place of business and offices in Harrison county. In the latter county appellee received the injury which is the basis of this action; it is a case, therefore, where appellant was neither domiciled in Forrest county, where the action was brought, nor did the action accrue in that county. Appellant sought by proper plea which the court held bad, to abate the action upon those grounds.

Before filing the plea in abatement, appellant had moved to quash the process served on it upon certain grounds set out in its motion for that purpose. Before this motion was acted on, appellant, with leave of court, withdrew it, and then filed the plea in abatement. The court held that the plea in abatement was bad, because, under section 3946 of the Code of 1906, section 2999 of the Code of 1930, by its motion to quash appellant waived the venue of the action.

We do not understand it to be seriously controverted by appellee that the proper venue of the action was either in Pearl River county, appellant's domicile, or in Harrison county, where the cause of action accrued. Section 707, Code of 1906, section 495, Code of 1930, expressly so provides.

Section 3946 of the Code of 1906, section 2999 of the Code of 1930 is in this language: "Where...