Cook v. Pitts

• Decision Date: 16 April 1917
• Court: Mississippi Supreme Court
• Parties: COOK v. PITTS

74 So. 777

114 Miss. 39

COOK v. PITTS

Supreme Court of Mississippi

April 16, 1917

March 1917

Division B

APPEAL from the circuit court of Sunflower county, HON. FRANK E EVERETT, Judge.

Suit by W. T. Pitts against E. B. Cook. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, motion sustained and cause remanded.

H. C. Mounger, for appellant.

Cook was not a resident of Sunflower county, when the suit was filed, and was served at his home in Sharkey county. This court had no jurisdiction to enter any judgment, or to take any step in the case, after the motion for a change of venue was made. Section 707, Code 1906, and authorities, especially McLeod v. Shelton, 42 Miss. 517.

"On the showing made by the defendant, plaintiff in error, the court should have changed the venue; the statute is imperative and leaves no discretion to the court in such a case and it was error to refuse it." McLeod v. Shelton, 42 Miss. 519, near bottom of page.

This disposes of the objection that it was a matter of discretion with the court and that the court once having passed on it, the supreme court could not disturb it. Counsel seems to have confused the change of venue from a court which originally has jurisdiction to another county on account of local prejudice and in a criminal case.

"The testimony introduced by the defendants in error was irrelevant, and should not have had any weight with the court in the decision of the motion; there was nothing in it to give the court jurisdiction of the case." Same, p. 519.

In Campbell v. Triplett, 74 Miss. 367, the court says: "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.

Watkins & Watkins, for appellant.

This case depends for its proper solution upon the construction of section 707 of the Code of 1906, amended chapter 166, Laws of 1908, dealing with the question of venue in the institution of suits in circuit courts in Mississippi, the last clause in the original and amended statute being as follows:

"If a citizen, a resident in this state, shall be sued in an action not local, out of the county of his household and residence, the venue shall be changed, on his application, to the court of his household and residence."

The positive and unambiguous terms of the statute would seem to call for no construction. It is only necessary to let plain English words have their usual and ordinary meaning. That the section is mandatory, imposing a positive duty upon the court, is not open to discussion. The statute, in practically its present form, has been part of our statutory law from the earliest history of Mississippi; was first construed in the case of Spain v. , I Walker, 153, and was held to be mandatory.

The statute was again construed in the case of McLeod v. Shelton, 42 Miss. 517, cited in the original brief for the appellant in this case, wherein the court construed the statute to be mandatory.

It would appear that such a citation of authorities is sufficient. However, we will direct the attention of the court to the citations from other states dealing with the subject-matter.

Rule of construction. It is universally held that such statutes should be liberally construed, so as to guarantee to every citizen of the state the right to be sued in the county of his residence. State v. Superior Court, 111 A. S. R., 915; Ramsey v. State, 154 N.W. 828.

Other authorities: In 40 Cyc., page 183, the following rule is announced: "If the right to change a venue is absolute, upon an application, duly and properly made, a denial thereof is reversible error," citing Miekle Printing Press Co. v. Arklaus, 131 Ill. 461; Evans v. Evans (Ind.), 5 N.E. 24; Burkett v. Holman (Ind.), 3 N.E. 406; Louisville R. R. Co. v. Martin (Ind.), 47 N.E. 394; Hewitt v. Follett (Wis.), 8 N.W. 177; Bond v. Heard (Mont.), 78 P. 579; McDonnell v. Collins, 19 Mont. 392, 48 P. 549; Wood, Curtis Co. v. Herman Mining Co. (Cal.), 73 P. 588; Ludington v. Gold & Silver Mining Co., 88 P. 290; Mills & Gibbs v. Starin, 104 N.Y.S. ; Shepard & Morse Lbr. Co. v. Burleigh, 27 A.D. 99, 50 N.Y.S. 135; People v. Platt, 117 N.Y. 166, 23 N.E. 937; Washington v. Thomas, 103 A.D. 423, 92 N.Y.S. 994; section 1, chapter 4, p. 3, Laws 1891, as amended by section 1, chapter 472, p. 1103, Laws 1906; Sylvester v. Lewis, 55 A.D. 160, 67 N.Y.S. 561; North Shore Industrial Co v. Randall, 108 A.D. 232, 95 N.Y.S. 758; Acker v. Leland, 86 N.Y. 383; Veeder v. Backer, 83 N.Y. 156; Gorman v. South Boston Iron Co., 32 Hun. 71; Herbert v. Griffith, 2 A.D. 566, 37 N.Y.S. 1098; Phillips v. Tietjen, 108 A.D. 11, 95 N.Y.S. 469; Upjohn v. First Methodist Church, 140 N.Y.S. 1104; Campbell v. Triplett, 74 Miss. 367.

There can be no question about the fact that Mr. Cook was a resident of the state of Mississippi.

Moody & Williams, for appellee.

That we take issue with counsel as to the statute in question, section 707 of the Code, being mandatory. It is perfectly clear that discretion must be vested somewhere, and, in the case at bar, an issue of facts was raised, which was passed on by the court.

It has been held in Illinois that the granting of a change of venue upon proper application in civil actions is imperative, except where a counter petition is filed, in which case the matter is discretionary with the court. 40 Cyc., page 118.

In this case the petition filed by appellant for a change of venue was contested, and resisted, and an issue of fact was made up and the circuit judge had the witnesses before him, and after hearing them, he decided against the appellant, and we insist that his finding should not be reversed, under all of the authorities. The burden of proof in a case of this kind is on the party making the motion.

"On an application for a change of venue, the burden is upon the applicant to prove the facts entitling him to such change." 40 Cyc., page 165.

It is contended that the record shows that appellant had a fixed and permanent place of abode in Sharkey county, Mississippi, but we insist that the record does not show this, but, to the contrary shows that appellant was merely living temporarily in that county. We quote from the record: "Q. You are living there (in Sharkey county) temporarily? A. I don't know whether I am living there temporarily or not."

Having gone to trial, and judgment having been rendered against him on the merits, we insist that the case should not be reversed for the highly technical reason that appellant claims he should have been sued in some other court.

OPINION

ETHRIDGE, J.

W. T Pitts, a real estate dealer in Sunflower county, Miss., filed suit against E. B. Cook in the district court of Sunflower county for the sum of two thousand, seven hundred and forty dollars and fifty cents, claimed as a commission due Pitts on the sale of real estate under a contract between Cook and Pitts, made an exhibit to the declaration, by which Cook engaged Pitts to sell certain real estate, and in which it was agreed that Pitts should sell the real estate for nineteen thousand eight hundred and ten dollars cash, the buyer to assume, in addition, a mortgage loan of thirty-five thousand dollars, and to have one year in which to make sale. The lands embraced one thousand, five hundred and sixty-six acres. In this contract, Cook reserved the right to sell the land himself, but it was provided that in event Cook should sell the land to a purchaser not procured by Pitts, the latter was to receive a commission of five per cent. of the fifty-four thousand eight hundred and ten dollars consideration. This contract was signed on the 30th day of January, 1915...