City of Jackson v. Wallace, 33847

• Court: Mississippi Supreme Court
• Writing for the Court: Ethridge J.
• Citation: 189 Miss. 252,196 So. 223
• Parties: CITY OF JACKSON v. WALLACE
• Decision Date: 20 May 1940
• Docket Number: 33847

196 So. 223

189 Miss. 252

CITY OF JACKSON
v.
WALLACE

No. 33847

Supreme Court of Mississippi

May 20, 1940

Suggestion Of Error Overruled July 5, 1940.

APPEAL from the circuit court of Walthall county, HON. J. F. GUYNES, Judge.

Suit by Miss Joor Wallace against the City of Jackson and another for personal injury. From a judgment for plaintiff against the City of Jackson, the City of Jackson appeals. Judgment reversed and cause dismissed.

Reversed and dismissed.

W. E. Morse, of Jackson, for appellant, City of Jackson.

The court erred in failing to give a peremptory instruction in favor of the City of Jackson for the reason that the court did not have venue of the suit, it being a suit against the City of Jackson, a municipal corporation, located in the First Judicial District of Hinds County, Mississippi.

Secs. 495, 496, 2370, 2984, Code of 1930; Chap. 335, Laws of 1938; Town of Jonestown v. Ganong, 97 Miss. 67; Mayor v. Lord, 9 Wall. 409, 19 L.Ed. 704.

There does not appear to be any case directly in point on this subject in the State of Mississippi. The common law rule was that a municipality could not be sued outside of its bailiwick or county. The venue of suits against a county provides in Section 270 of the Code of 1930 that suits shall be instituted at the county site. Section 495 provides that public officers must be sued in the county of their residence. The nearest approach to the venue question that I can find in the state is the case of Clarksdale Compress v. Caldwell, 80 Miss. 343, 31 So. 790.

It is usually held that a municipal corporation may be sued only in the court having jurisdiction in the county or district or circuit in which it is situated unless otherwise expressly provided by law. The reason given therefor in some cases is the inability of courts to serve process and enforce their judgments outside of their county. While in other cases it is held that such actions are local and not transitory and must, therefore, be brought in the county where the municipality is situated.

6 McQuillin's Municipal Corporations (Rev. Ed.), 19 R. C. L. 1049, Sec. 338; City of Nashville v. Webb, 144 Tenn. 432, 4 Ann. Cas. 1169; Phillips v. Baltimore, 110 Md. 431, 72 A. 902, 25 L. R. A. (N. S.) 711, and note; Arlington v. Calhoun (Ga.), 95 S.E. 991, L. R. A. 1918E, 773; Oklahoma City v. District Court, 32 P.2d 318, 93 A. L. R. 489; Simpson v. Neshoba County, 157 Miss. 217, 127 So. 692.

The State of Mississippi is a common law state, except where it has been modified by statute.

Powell v. Brandon, 24 Miss. 343; Hollman v. Bennett, 44 Miss. 322; Hemingway v. Scales, 41 Miss. 116; Interstate Life and Ace. Co. v. Pannell, 169 Miss. 50, 152 So. 635.

The appellee relies on Section 495 and Section 496 of the Mississippi Code of 1930, Section 496 having to do with the joining of the Mississippi Power and Light Company. She relies on the case of Oliver v. Loye, 59 Miss. 320, to the effect that the common law distinction of local and transitory actions does not exist. "The statute alone governs . . . and that we look to our statutes to see what actions may be maintained by our courts." This was affirmed in the case of Archibald v. Mississippi & T. Railroad Company, 66 Miss. 424, 6 So. 238. However, our court has never been called upon to say whether or not a suit against a municipality is local. That question was not before the court in the two cases. The majority of the courts hold that a suit against a municipality is local. In addition to that, the public policy of a state should be that a municipality cannot be sued outside of the county.

Brewer & Hewitt, of Jackson, Hathorn & Williams, of Poplarville, and Mounger & Calhoun, of Tylertown, for appellee.

The court did not err in refusing peremptory instruction requested by City of Jackson for reason that the suit could be brought in the county in which either of the defendants was found.

The suit was instituted jointly against Mississippi Power & Light Company and City of Jackson. Section 496, Code of 1930, fixes the venue of actions against power companies, and Section 495, Code of 1930, fixes the venue of all other actions. This court has repeatedly held that where there are two defendants to a suit the venue of the action may be laid in the county of the residence of either.

Dean v. Brannon, 139 Miss. 312, 104 So. 173; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; PanAmerican Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480; Miss. Power & Light Co. v. Lowe, 179 Miss. 377, 175 So. 196.

Appellant claims, however, that actions against municipal corporations are local and that the venue thereof is controlled by the common law and not by Section 495, Code of 1930. In support of this contention, appellant cites and quotes from authorities of other states, all of which are directly opposed to the decisions of the Supreme Court of this state construing Section 1498, Code of 1880, brought forward as Section 707, Code of 1906, and as Section 495, Code of 1930. These Mississippi decisions hold that the venue of all actions in Mississippi is controlled by statute, and not by common law. See Oliver v. Loye, 59 Miss. 320; Archibald v. M. & T. R. R. Co., 66 Miss. 424, 6 So. 238.

The rule that the common law distinction between local and transitory actions does not exist in Mississippi and that the statute alone governs with reference to the venue of actions has been the law for so long in Mississippi, and is so well understood by the bench and bar to be the law, we are surprised at counsel for appellant quoting from the authorities of other states in the hope of having this court overrule the well settled line of decisions of this court settling this principle of law.

Oliver v. Loye, 59 Miss. 320; Dean v. Brannon, 139 Miss. 312, 104 So. 173; State v. Cloud, 146 Miss. 642, 112 So. 19; Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480.

The rule announced by this court in the Oliver case and the Archibald case is in line with the rule announced by some of the leading courts of the United States.

Raymond v. Lowell, 6 Cush. 524, 53 Am. Dec. 57; National Shawmut Bank v. Waterville (Mass.), 189 N.E. 92; New Jersey Imperial Road Co. v. Gloucester County, 80 N. J. L. 640, 77 A. 1022; Hesselbrock v. Burlington County, 111 N. J. L. 177, 168 A. 45; Van Horn v. Kittitas County, 28 Misc. 333, 59 N.Y.S. 883, 46 A.D. 623, 61 N.Y.S. 1150; Harman v. Ft. Lauderdale, 134 Misc. 133, 234 N.Y.S. 196; Muskingum County Infirmary v. Toledo, 15 Ohio St. 409; Kiowa County v. Kiowa Nat. Bank, 141 Okla. 271, 284 P. 634; Tahoka v. Jackson, 115 Tex. 89, 276 S.W. 662; Hunt v. Pownal, 9 Vt. 411; State ex rel. King County v. Superior Ct., 104 Wash. 268, 176. Pac. 352; Northern P. R. Co. v. State, 144 Wash. 505, 258 P. 482; Oklahoma City v. District Court, 32 P.2d 318, 93 A. L. R. 489, and note page 506.

Green, Green & Jackson, and A. M. Nelson, all of Jackson, for Mississippi Power & Light Company on motion to dismiss.

Argued orally by W. E. Morse, for appellant, and E. B. Williams and William H. Hewitt, for appellee.

Ethridge J., McGowen, J., dissenting. McGehee, J., dissents.

OPINION [196 So. 224]

[189 Miss. 257] Ethridge J.

The appellee, plaintiff in the court below, brought a suit in the Circuit Court of Walthall county against the Mississippi Power & Light Company, having a power line in Walthall county; and also against the city of Jackson, a municipal corporation in Hinds county, Mississippi, for a personal injury sustained in Jackson, where the Mississippi Power & Light Company has its principal place of business.

There was a plea to the jurisdiction of the Circuit Court of Walthall county as to the city of Jackson, in which it was set up that the city was a municipal corporation domiciled in Hinds county, Mississippi, and was not suable outside of the county of its domicile, and could not be joined in a suit with the Mississippi Power & Light Company outside of Hinds county. The Circuit Court overruled its plea, and after the evidence was closed gave an instruction directing a verdict for the Mississippi Power & Light Company, and submitted the case to the jury on the liability of the city of Jackson for the alleged injury, which resulted in a judgment against the city [189 Miss. 258] in favor of the plaintiff for $ 20, 000; from which judgment this appeal is prosecuted.

The city of Jackson also requested a peremptory instruction at the close of the evidence, based on the ground that it was not suable in Walthall county, and that a directed verdict should be given in its favor, which instruction was refused. There are a number of assignments of error in the case, but we deem it necessary to deal with the question of jurisdiction alone, as our conclusion in regard thereto leads to the reversal and dismissal of the case.

The statute of this state is silent as to the venue of actions against municipal corporations, and consequently the common law prevails in regard thereto. In 19 R. C. L., page 1049, section 338, it is said: "It is held by the great weight of authority that an action against a municipal corporation, whatever the character of the action, is inherently local, and must be brought in the county in which the municipality is situated. It is considered to be of the greatest importance to the welfare of such bodies, and of the citizens whom they serve, that their officers should be permitted to remain at...