Belk v. State Dept. of Public Welfare

• Citation: 473 So.2d 447
• Decision Date: 24 July 1985
• Docket Number: No. 55591,55591
• Parties: Otis Lee BELK v. STATE DEPARTMENT OF PUBLIC WELFARE, State of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 447

473 So.2d 447

Otis Lee BELK v. STATE DEPARTMENT OF PUBLIC WELFARE, State of Mississippi.

No. 55591.

Supreme Court of Mississippi.

July 24, 1985.

W. Howard Gunn, Aberdeen, for appellant.

Edwin A. Flint, Jr., Columbus, for appellee.

Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

This case presents an issue of the interpretation of our statutes and the Mississippi Rules of Civil Procedure as they apply to the sometimes troublesome issue of venue.

The State Department of Public Welfare, under the authority of Mississippi Code Annotated Sec. 43-19-31 (Supp.1984) (child support unit procedure), and Mississippi Code Annotated Sec. 93-9-9 (1972) (bastardy procedure), filed an action in the Chancery Court of Lowndes County against Otis Lee Belk alleged to be a Lowndes County resident. The suit sought to declare Belk the father of an illegitimate child and to order him to support that child. Subsequent events were to show that Belk was and always had been a resident of Clay County.

On September 15, 1982, service of process was had upon Belk by the sheriff of Clay County, Mississippi. Belk made no response, and on January 3, 1983, an entry of default was made against him by the Lowndes County Chancery Clerk. On February 1, 1983, the chancellor granted a default judgment declaring Belk the natural father of the child and ordering him to pay child support of $100.00 per month.

On May 30, 1983, the department moved to cite Belk for contempt as no support had ever been paid.

On July 28, 1983, Belk filed a motion to dismiss the contempt and the underlying default judgment of paternity and support on the theory that venue under the paternity statute, Mississippi Code Annotated Sec. 93-9-17 (1972) was in Clay County and therefore the Lowndes County judgment was void.

The department sought a summary judgment that Belk had waived venue (his right to be sued in Clay County) when he neither responded to the action nor objected to the venue in Lowndes County.

After a hearing, the chancellor overruled Belk's motion to dismiss and granted the motion of the Department of Public Welfare for a summary judgment that Belk had waived venue by his failure to timely object.

In his opinion, the chancellor found that under Sec. 93-9-17 Belk had a right to be sued only in Clay County. The chancellor then found that this case was controlled by the Mississippi Rules of Civil Procedure and that Rule 82(d) Miss.R.Civ.P. adopted the dissent in Gillard v. Great Southern Mortgage and Loan Association, 354 So.2d 794 (Miss.1978). Therefore, based upon Rule 82(d), Belk's proper remedy, in vindication of his venue right, was to timely object to the improper venue and move to transfer to Clay County at the cost of the Welfare Department.

Treating the motion to dismiss as an objection to venue, the chancellor then found that it was not timely filed and that venue had been waived.

On appeal, Belk contends that the chancellor has overruled Gillard and repealed Mississippi Code Annotated Sec. 93-9-17, which provides in pertinent part:

An action under Sec. 93-9-1--Sec. 93-9-49 may be brought in the county where the alleged father is present or has property; or in the county where the mother resides; or in the county where the child resides. However, if the father resides or is domiciled in this state, the action must be brought in the county where the father resides.

Belk argues that Rule 82(d) merely replaces Mississippi Code Annotated Sec. 11-11-17 (Supp.1984), and adds to it that the plaintiff will bear the burden of transfer expenses in the event the plaintiff brought an action that might properly have been filed in more than one county in the wrong county. Furthermore, Rule 82(d) does not take effect until the defendant objects to the improper venue. Belk then argues that Mississippi Code Annotated Sec. 93-9-17 is not listed in Appendix B of the Miss.R.Civ.P. as having been supplanted by those rules. He contends that Sec. 93-9-17 specifically provides mandatory procedures governing venue in illegitimacy proceedings. If this reasoning be correct, then the ruling of the chancellor is in error and must be reversed.

Belk relies upon Gillard, in which this Court held that venue was not waived and reversed a default judgment where the defendants were sued in a county not of their residence by a plaintiff for the plaintiff's own convenience. Plaintiff knew that neither defendant resided there and the cause of action did not accrue there. In Gillard, we interpreted Mississippi Code Annotated Sec. 11-11-17 (Supp.1984) to hold that where a plaintiff failed to make a bona fide reasonable effort to file suit in the county where the defendant resided venue was not waived.

Belk also places great reliance in another pre-Rules case, Metts v. State Department of Public Welfare, 430 So.2d 401 (Miss.1983), in which this Court, speaking through Justice Prather, addressed the question of venue in a paternity proceedings similar to the case sub judice. In Metts, the alleged father, a resident of Winston County, was sued in the Chancery Court of Hinds County in exactly the same type proceeding as in this case. Default was entered against the defendant and he appealed and raised as one issue on appeal the failure of the plaintiff to sue the defendant in the county of his residence. We gave the following interpretation of Mississippi Code Annotated Sec. 93-9-17:

The venue of a bastardy proceeding under Sec. 93-9-9 is as follows:

An action brought under Sec. 93-9-1--Sec. 93-9-49 may be brought in the county where the alleged father is present or has property; or in the county where the mother resides; or in the county where the child resides. However, if the father resides or is domiciled in this state, the action must be brought in the county where the father resides. (Miss.Code Ann. Sec. 93-9-17 (1972) ... Thus, when a party filed a law suit based on these two statutes, compliance with Sec. 93-9-17 is required.

The thrust of the argument of Belk is that venue in a paternity action is jurisdictional and as such it cannot be waived. If this is true, Rule 82(d) of the Miss.R.Civ.P. is inapplicable.

It is true that in certain instances we have recognized a concept of geographical jurisdiction. In Ross v. Ross, 208 So.2d 194 (Miss.1968), this Court held such notion applicable in divorce actions. In Green v. Winona Elevator Co., 319 So.2d 224 (Miss.1975), a suit to set aside a fraudulent conveyance of soybeans, we held that Mississippi Code Annotated Sec. 11-5-1 (1972), required that the suit be brought in the county where the real or personal property was located. Geographical jurisdiction, therefore, was based on the location of the property, not the parties. By statute, there are many other actions which may be brought only in the chancery or circuit court of Hinds County, Mississippi.

Venue, however, has always been a personal privilege which can be waived when the action is "in personam". The only exception to this rule is when, by statute, the place where the action is to be heard is deemed jurisdictional, the primary examples of which are divorce actions, and actions dealing with property.

To determine proper venue in this case, three statutes must be interpreted. The general chancery venue statute, Mississippi Code Annotated Sec. 11-5-1 (1972), provides:

Suits to confirm title to real estate, and suits to cancel clouds or remove doubts therefrom, shall be brought in the county where the land, or some part thereof, is situated; suits against executors, administrators, and guardians, touching the performance of their official duties, and suits for an account and settlement by them, and suits for the distribution of personalty of decedents among the heirs and distributees, and suits for the payment of legacies, shall be brought in the chancery court where the will was admitted to probate, or letters of administration were granted, or the guardian was appointed; other suits respecting real or personal property may be brought in the chancery court of the county in which the property, or some portion thereof, may be; and 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 in all cases process may issue to any county to bring in defendants and to enforce all orders and decrees of the court.

This is the most general of chancery venue statutes in its relation to the individual defendant in an in personam action. It provides that an action may be brought in any county where a defendant may reside or be found. There is no mandatory requirement that it be brought in a particular county.

We must next consider Mississippi Code Annotated Sec. 93-9-17 (1972), the paternity venue statute. It states:

An action under Sec. 93-9-1--Sec. 93-9-49 may be brought in the county where the alleged father is present or has property; or in the county where the mother resides; or in the county where the child resides. However, if the father resides or is domiciled in this state, the action must be brought in the county where the father resides.

This provides three possible venues for paternity proceeding but mandates that a resident putative father is entitled to be sued in the county where he resides.

The third statute we must consider is Mississippi Code Annotated Sec. 43-19-31 (Supp.1984). This is the statute that created the child support unit within the State Department of Public Welfare. This statute allows the institution of proceedings in the name of the State...