Bryant v. Lovitt

• Decision Date: 28 October 1957
• Docket Number: No. 40531,40531
• Citation: 231 Miss. 736,97 So.2d 730
• Parties: Edward BRYANT v. Norman W. LOVITT and David O. Lovitt, d/b/a Lovitt Equipment Company.
• Court: Mississippi Supreme Court

Page 730

97 So.2d 730

231 Miss. 736

Edward BRYANT v. Norman W. LOVITT and David O. Lovitt, d/b/a Lovitt Equipment Company.

No. 40531.

Supreme Court of Mississippi.

Oct. 28, 1957.

W. Arlington Jones, Hattiesburg, for appellant.

Edward J. Currie, Sr., Edward J. Currie, Jr., Hattiesburg, for appellee.

ROBERDS, Presiding Justice.

On July 2, 1955, Norman Lovitt and David Lovitt, residents and citizens of Forrest County, Mississippi, doing business as partners in said county, filed a declaration in the county court of that county against Edward Bryant, seeking to recover a personal judgment against Bryant for the value of certain merchandise the Lovitts claim to have sold Bryant and for which he had not paid. The declaration stated that Bryant was 'an adult resident citizen of Mississippi on whom process of this court may be served.' As a matter of fact Bryant was a resident citizen and householder of Jones County, Mississippi. The Lovitts knew that. No summons issued to Bryant to Forrest County. Summons did issue for him to Jones County, Mississippi, and was there served upon him by the deputy sheriff of Jones County leaving a copy of the summons with Bryant's wife as provided by the 'Second' method of serving summons under Section 1859, Miss.Code 1942. Bryant did not appear in response to the summons. In fact, he claims he did not know the suit had been brought nor that the summons had issued. On November 14, 1955, judgment by default was taken against him for $838.58.

Bryant contends, on this appeal, that he was not subject to suit in this type of action in Forrest County; that he had the right to be sued in the county of his residence and household, as provided by Section 1433, and that the judgment against him is void. In this contention we think he is correct. Cain v. Simpson, 53 Miss. 521; Cook v. Pitts, 114 Miss. 39, 74 So. 777; Howard v. Ware, 192 Miss. 36, 3 So.2d 830, 140 A.L.R. 1284; Pate v. Taylor, 66 Miss. 97, 5 So. 515; Christian v. O'Neal, 46 Miss. 669; Perry v. Nolan and Maris, 159 Miss. 384, 131 So. 252, 253; Bank of Vicksburg v. Jennings, 5 How. 425; Andrews v. Powell, 41 Miss. 729; Wolley v. Bowie, 41 Miss. 553; Alabama Power Co. v. Jackson, 181 Miss. 691, 179 So. 571; Campbell v. Triplett, 74 Miss. 365, 20 So. 844. In some of the foregoing cases there were two or more defendants, none being found in the county where the suit was brought, but the principles of these cases apply where there is only one defendant, and he is a resident citizen of another county.

Campbell v. Triplett, supra, was an attachment in the Circuit Court of Winston County, Mississippi. Attachment writs issued to Winston, Attala, and Leflore counties, and returned 'no property found'. Summons issued for defendant Campbell to Winston County and was not found, but he was served with summons in Leflore County. Judgment by default was entered against Campbell. Later he moved the court to set aside the judgment for want of jurisdiction. This Court, speaking through Judge Cooper, said: 'None of the writs of attachment were served as such, and as writs of attachment they so for naught. No jurisdiction in the cause was therefore secured by seizure of the property of the defendant. The writ, as a summons, was served upon the defendant in another county, and on this service the circuit court of Winston County rendered judgment by default against him. The court had no jurisdiction over defendant, and the motion to vacate the judgment should have been sustained. The venue of civil actions of this class is in the county 'in which the defendants, or any of them, may be found,' and, if no defendant is served with process in the county in which the suit is brought, the jurisdiction of the court does not attach. Wolley v. Bowie, 41 Miss. 553; Pate v. Taylor, 66 Miss. 97, 5 So. 515.'

In 42 Am.Jur., page 44, Par. 52 appears this statement: 'The process of a court which sits in a county may be served at any place within the county, but in the absence of a controlling practice provision, if an action to recover money judgment only is brought against a defendant in a county wherein he does not reside and cannot be served with summons the court does not acquire jurisdiction over his person by summons served on him in the county of his residence. If he has failed to appear, a judgment rendered upon such service is void.'

Permission to plaintiffs to select the situs of personal actions, not local, would often work great hardship and disadvantage to defendants. Conceivably the suit might be filed in this state three hundred miles from the county of the residence of such a defendant, necessitating large outlay of money for travel and other expenses, to defend the suit with resulting inability of such defendant to procure attendance of witnesses at the trial.

Lovitt says that Bryant's remedy was to appear in the case and move for a change of venue to the county of his residence 'before the jury is impaneled', as is provided in said Section 1433. There are two answers to that contention: First, the judgment, being null and void, could be attacked directly or collaterally, anywhere and at any time (Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752, 81 So.2d 695), and, second, no jury was empaneled to try the issues in this case. The judgment was by default. Bryant did attack the judgment after its entry as is shown hereinafter. It might be added that the county court knew, when the defendant judgment was entered, that Bryant had not been served with process in Forrest County, and that the declaration, inadvertently or intentionally, had failed to state the county of his household and residence. The return of the sheriff on the summons to Jones County, stated the officer had left a copy of the summons with Mrs. Bryant at Bryant's 'usual place of abode.' The return of the sheriff of Jones County was copied into the judgment. Lovitt urges that Bryant, by his actions hereinafter set out, submitted himself to the jurisdiction of the court and waived venue of the action. That contention is grounded in this state of facts: As stated, the default judgment was taken against Bryant in the County Court of Forrest County on November 14, 1955. On February 21, 1956, writs of garnishment issued on that judgment to the banker and employer of Bryant. Bryant says that was the first time he knew that he had been sued and the judgment had been taken in Forrest County. Both garnishees answered, admitting they owed Bryant certain stated amounts, and stating that he was a householder and resident citizen of Jones County and was entitled to certain exemptions, and suggested that Bryant be summoned. That was done.

On March 9, 1956, Bryant filed a motion, or a petition, in the case, attacking the legality of the summons which had been served upon his wife, averring, contrary to the return on the summons, that Mrs. Bryant refused to accept the summons. The petition stated that Bryant was in Jones County when the deputy sheriff said he served the summons, and asserted that he, Bryant, was available for personal service of the original summons. He stated that the original judgment of November 14 was null and void. He denied he owed the debt for which the suit was brought, and...