Brashier v. J. C. O'Connor & Sons

• Decision Date: 04 April 1938
• Docket Number: 33110
• Citation: 181 Miss. 872,180 So. 67
• Parties: BRASHIER v. J. C. O'CONNOR & SONS et al
• Court: Mississippi Supreme Court

180 So. 67

181 Miss. 872

BRASHIER v. J. C. O'CONNOR & SONS et al

No. 33110

Supreme Court of Mississippi

April 4, 1938

Division B

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 hill 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.

HON. A. B. AMIS, Sr., Chancellor.

APPEAL from chancery court of Clarke county., HON. A. B. AMIS, SR., Chancellor.

Suit by R. F. Brashier against J. C. O'Connor & Sons and others to recover the balance due for work done by plaintiff in constructing a highway and to recover the balance due on the purchase price of trucks. From a decree of dismissal, the complainant appeals. Affirmed.

Affirmed.

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 A.D. 19, 89 N.Y.S. 621; Brown v. Lewis, 50 Ore. 358, 92 P. 1058; Fratt v. Wilson, 30 Ore. 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. Jut. Appearance, sees. 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, Griftith's Chancery Practice, section 85 but an examination of that section does not...