Bilbo v. Bilbo

• Decision Date: 03 January 1938
• Docket Number: 32951
• Citation: 177 So. 772,180 Miss. 536
• Court: Mississippi Supreme Court
• Parties: BILBO v. BILBO

177 So. 772

180 Miss. 536

BILBO v. BILBO

No. 32951

Supreme Court of Mississippi

January 3, 1938

Division A

Suggestion Of Error Overruled February 14, 1938.

APPEAL from the chancery court of Pearl River county HON. BEN STEVENS, Chancellor.

Suit by Theo. G. Bilbo against Mrs. Linda Ruth Bilbo, wherein the defendant filed a cross-bill. From an adverse decree, the defendant appeals. Affirmed.

Affirmed.

Brewer & Hewitt, of Jackson, for appellant.

Involved here is the question of whether or not the chancery court of Pearl River County has jurisdiction of this cause. Our general statutes relative to venue and jurisdiction are not here applicable, for we have a special statute which confers jurisdiction to grant a divorce. Section 1417 of the Code of 1930, which Judge Amis at page 329 of his work on Divorce and Separation in Mississippi says is not a mere statute of venue but one of jurisdiction, follows: "Where to file bill.--The bill must be filed in the county in which the complainant resides, if the defendant be a non-resident of this state, or be absent, so that process cannot be served and the manner of making such parties defendants so as to authorize a decree against them in other chancery cases shall be observed. If the defendant be a resident of this state, the bill shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the complainant be still a resident of such county when the suit is instituted."

The view taken by the Chancellor was that if his court had jurisdiction it was by virtue of the clause: "or in the county of the residence of the parties at the time of separation, if the complainant be still a resident of such county when the suit is instituted." And that no other portion of the section quoted would give his court jurisdiction. In this, certainly, the Chancellor was correct, however, we are of the opinion that in going further and holding that this clause conferred jurisdiction the court committed error.

The right of a defendant to be sued in the county of his residence is a valuable one, and should not be taken from him unless he is clearly not entitled thereto.

Cain v. Simpson, 53 Miss. 521; Werner v. Bryden, 278 P. 869, 99 Cal.App. 398; Jacobson v. Hosmer, 76 Mich. 234, 42 N.W. 1110; American Historical So. v. Glenn, 162 N.E. 481, 248 N.Y. 445; Southwestern Surgical Supply Co. v. Scarborough, 15 S.W.2d 65.

The privilege conferred on a defendant of being sued in the county of his domicile is a valuable and substantial right, which is not to be denied upon a strained or doubtful construction of a statutory exception or except in strict compliance with the law on clear and convincing proof, and all doubts are to be resolved in its favor.

67 C. J. 97.

The only reasonable construction of the exception is that the word "residence" means actual residence or place where parties live.

We come to the question of just what is the meaning of this word "residence." There are various and sundry meanings given the term in our leading dictionaries, but the primary meaning thereof is found to be "the place where a person lives for some time."

Morgan v. Hunes, 54 Miss. 308; Enochs v. State, 97 So. 534, 133 Miss. 107; Buckley v. Porter, 133 So. 215, 160 Miss. 98; Section 2072, Code of 1930.

Unless a contrary intent on the part of the legislature is manifest the word "residence" should be given its usually accepted meaning which is the place where the parties lived.

The learned Chancellor in deciding the question below and in granting the apical stated that it was a matter of serious doubt as to whether or not the word "residence" in the section here under consideration meant actual residence or legal residence. The authorities heretofore cited hold that where the valuable right of a defendant to be sued in the county of his residence is involved that it "is not to be denied upon a strained or doubtful construction of a statutory exception."

The court erred in refusing to allow appellant alimony pendente lite and suit money and in not making appellant as adequate allowance for attorneys' fees.

Hathorn & Williams, of Poplarville, for appellee.

We agree with counsel for appellant that the question involved on this appeal is whether or not the Chancery Court of Pearl River County has jurisdiction of the cause, and that the general statutes on venue and jurisdiction are not applicable, but that the special statute, Section 1417 of the Code, applies and controls.

Jurisdiction of this cause by the Chancery Court of Pearl River County rests upon two grounds set out in the statute: (1) That complainant was a resident of Pearl River County, and defendant was absent from this state, so that process could not be served, when the bill was filed; (2) That Pearl River County was the county of the residence of the parties at the time of the separation, and complainant was still a resident of such county when the suit was instituted.

Pearl River County was the county of the residence of the parties at the time of the separation, and complainant was still a resident of such county when the suit was instituted.

We contend that the word "residence" as used in divorce statutes,--as used in our divorce statutes,-- means domicile or legal residence, the place where a person assumes the burdens and exercises the privileges of citizenship. In other words, that the word "residence," as used in divorce statutes, is equivalent to and synonymous with the word "domicile." If we are correct in this contention then, under the evidence in this case, there can mo question but that Pearl River County was "the county of the residence of the parties at the time of the separation;" for it is in evidence, without dispute, that it was in Pearl River County that the parties had their domicile or legal residence, and assumed the burdens and exercised the privileges of citizenship, at the time of the separation.

19 R. C. L. 26, par. 36; Allgood v. Williams, 8 So. 722; Shaw v. Shaw, 98 Mass. 158; Caheen v. Caheen, 172 So. 618; Bell v. Bell, 45 L.Ed. 804; Streitwolf v. Streitwolf, 45 L.Ed. 807; Hiles v. Hiles, 106 A. L. R. 1, and notes on pages 10, 11, 12, 13, 14; Clay v. Clay, 134 Miss. 658, 99 So. 818; May v. May, 158 Miss. 68, 130 So. 52; Butler v. Butler, 134 N.Y.S. 108; Carpenter v. Carpenter, 30 Kan. 712, 2 P. 122, 46 Am. Rep. 108; Lesh v. Lesh, 13 Pa. Dist. R. 537; Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 583; Rollings v. Rollings, 60 App. D. C. 305, 53 F.2d 917.

In his splendid work on Divorce and Separation in Mississippi, Judge Amis treats the word "residence" as used in the divorce statutes as being the equivalent of "domicile."

Section 241, Divorce and Separation in Mississippi, by Amis, pages 329, 330, 331.

We submit that the above quoted authorities abundantly sustain our position and contention that the word "residence" as used in divorce statutes,--as used in our divorce statutes,--means domicile or legal residence, the place where a person assumes the burdens and exercises the privileges of citizenship.

McHenry v. State, 80 So. 763, 119 Miss. 289.

Under the evidence in the case at bar, there can be no question but that Pearl River County was the county of the residence of the parties, their domicile or legal residence, the place where they assumed the burdens and exercised the privileges of citizenship at the time of the separation.

We respectfully submit that Pearl River County was the county of the residence of the parties at the time of the separation, and since complainant was still a resident of such county when the suit was instituted the Chancery Court of that county had jurisdiction of the cause, and the chancellor was right in overruling appellant's plea to the jurisdiction.

We direct the attention of the court to Section 2909 of the Code of 1930 which reads as follows: "State officers--legal residence of, fixed.--All public officers of this state, who are required to, or who for official reasons, remove from the county of their actual household and residence to another county of this state for the purpose of performing the duties of their office shall be deemed in law in ail respects to be householders and residents of the county from which they so remove unless such officer elects to become an actual householder and resident of the county to which he removed for official causes."

There can be no question but that the domicile or legal residence of appellee (and of appellant, his wife), was Pearl River County when he was elected in 1927 and when he was inducted into office and moved into the governor's mansion in 1928.

The statute, Section 1417 of the Code of 1930, provides that the bill must be filed in the county in which the complainant resides, if the defendant be absent from this state, so that process cannot be served. This provision is mandatory. The bill had to be filed in Pearl River County, at the time it was filed, because that was the county in which complainant resided, and defendant was then absent from this state, so that process could not be served.

Sections 1417, 2972, 2973, Code of 1930.

The court did not err in refusing to allow appellant alimony pendente lite and in fixing the attorneys' fee at $ 100.

H. H. Parker and J. M. Morse, both of Poplarville, for appellee.

The only question this motion raises is this, which county, Hinds or Pearl River County, was the residence of Senator Bilbo in October, 1931, for Mrs. Bilbo was living with Senator Bilbo prior to this time, as his wife, was certainly a resident citizen of Pearl River County, Mississippi.

Weisinger v. McGehee, 160 Miss. 424, 134 So. 148.

All of the evidence for both par...