Ensminger v. Campbell

• Decision Date: 20 November 1961
• Docket Number: No. 41961,41961
• Citation: Ensminger v. Campbell, 134 So.2d 728, 242 Miss. 519 (Miss. 1961)
• Parties: Pauline Montgomery ENSMINGER v. Pete Clyde CAMPBELL, Administrator, Edtate of William E. Ensminger, Deceased.
• Court: Mississippi Supreme Court

Page 728

134 So.2d 728

242 Miss. 519

Pauline Montgomery ENSMINGER v. Pete Clyde CAMPBELL, Administrator, Edtate of William E Ensminger, Deceased.

No. 41961.

Supreme Court of Mississippi.

Nov. 20, 1961.

Morse & Morse, Poplarville, Robert L. Netterville, Natchez, Dodd, Hirsch, Barker & Meunier, Baton Rouge, La., for appellant.

Clay B. Tucker, Woodville, for appellee.

KYLE, Justice.

This case is before us on appeal by Pauline Montgomery Ensminger, plaintiff in the court below, from a judgment of the Circuit Court of Wilkinson County sustaining the motion of Pete Clyde Campbell, administrator of the Estate of William E. Ensminger, deceased, defendant, to dismiss the plaintiff's action because of lack of jurisdiction over the person of the defendant and the plaintiff's cause of action.

The facts in this case, as shown by an agreed stipulation are as follows: The plaintiff, Pauline Montgomery Ensminger, was injured in an automobile accident which occurred on December 24, 1952, on Mississippi State Highway No. 24 in Wilkinson County. The accident accurred about 4:30 P.M., approximately five miles west of Centerville, where the automobile in which the plaintiff was riding with her husband, the said William E. Ensminger, same being a 1949 Oldsmobile, left the highway and ran into a tree. Mrs. Ensminger was alleged to have been seriously injured as a result of the accident. Both Mrs. Ensminger and her husband were nonresidents of the State of Mississippi at the time of the accident, and were living together as man and wife in the State of Louisiana.

The plaintiff first filed her suit in the Chancery Court of Wilkinson County on November 27, 1953, against the said William E. Ensminger, seeking to recover damages for personal injuries sustained by her as a result of the accident. Service of process was obtained on the said William E. Ensminger, a nonresident, under authority of Section 9352-61, Mississippi Code of 1942, Rec. On December 8, 1953, the case was transferred to the Circuit Court where the pleadings were reformed. The defendant then filed a general demurrer to the declaration on the ground that the plaintiff could not maintain an action against her husband for a tort. The demurrer was sustained, and the plaintiff declined to plead further. A final judgment of dismissal was entered, and the plaintiff appealed the case to this Court. This Court, on January 24, 1955, affirmed the judgment of the circuit court sustaining the general demurrer and dismissing the plaintiff's suit. See Ensminger v. Ensminger (1955), 222 Miss. 799, 77 So.2d 308.

On October 17, 1955, Pauline Montgomery Ensminger was granted a divorce from the bonds of matrimony existing between her and the said William E. Ensminger by the Fifth Judicial District Court of Franklin Parish, in the State of Louisiana. On April 18, 1957, the said William E. Ensminger died in Baton Rouge, Louisiana, and a short time thereafter Pete Clyde Campbell, a resident of East Baton Rouge Parish, in the Sate of Louisiana, was appointed administrator of the Succession of William E. Ensminger, deceased, by the 19th Judicial District Court of East Baton Rouge Parish, and then duly qualified as such.

On November 26, 1958, Pauline Montgomery Ensminger filed suit in the Circuit Court of Wilkinson County against the above named nonresident administrator seeking to recover damages for personal injuries suffered by her as a result of the accident which occurred on December 24, 1952, while riding as a passenger in the said William E. Ensminger's 1949 automobile. Nothing was said in the plaintiff's declaration concerning the filing or termination of the first suit filed by the plaintiff against her husband, William E. Ensminger, on November 27, 1953. The second suit was filed against the nonresident administrator under authority of Section 9352-61, Miss.Code of 1942, Rec., as amended by Ch. 229, General Laws of Mississippi, 1954; and process was obtained on the nonresident administrator as provided in said Code Section 9352-61, as amended. On February 10, 1959, the defendant nonresident administrator filed a motion to quash the service of process, alleging as grounds therefor the following: That William E. Ensminger survived the accident which occurred on December 24, 1952, for a period of more than four years; that Mrs. Pauline Montgomery Ensminger, the plaintiff, commenced an action against him on December 15, 1953, in the Circuit Court of Wilkinson County, for recovery of damages for the injuries suffered by her as a result of said accident, and that the said William E. Ensminger successfully defended said action, as is fully shown by the opinion rendered by the Supreme Court in Cause No. 39,429 on January 24, 1955; see Ensminger v. Ensminger, 222 Miss. 799, 77 So.2d 308; and that because of said suit which was commenced and terminated during the lifetime of William E. Ensminger, no agency or relationship created under the provisions of said Code Section 9352-61, by and between William E. Ensminger in his lifetime and the Secretary of State, survived and continued as to such nonresident administrator after the death of the said William E. Ensminger, and service of process on him as such nonresident administrator in accordance with said Code Section 9352-61, was void and of no force and effect. The court sustained the defendant nonresident administrator's motion to quash the service of process on March 11, 1959. An appeal was taken by the plaintiff to this Court from the judgment sustaining the motion to quash; and that appeal was dismissed by this Court on the ground that no final judgment had been rendered in the cause. See Ensminger v. Campbell, Administrator of the Estate of William E. Ensminger, 1960, 238 Miss. 665, 119 So.2d 278.

After the cause had been remanded to the lower court the defendant nonresident administrator filed a motion to dismiss the cause for lack of jurisdiction of the person of the nonresident administrator and the subject matter of the action, and assigned as grounds for said motion the following: (1) That the allegations of the plaintiff's declaration showed that no agency or relationship created by the defendant's intestate, a nonresident owner of the motor vehicle, in operating his motor vehicle over the public roads in Wilkinson County, Mississippi, on December 24, 1952, survived and continued to said nonresident administrator, so as to subject said nonresident administrator to substituted service of process and the jurisdiction of the Circuit Court of Wilkinson County, within the terms of Section 9352-61, Miss.Code of 1942, Rec.; (2) that the allegations of the plaintiff's declaration showed that after the death of the defendant's intestate on April 18, 1957, no cause of action survived and continued in favor of the plaintiff against said nonresident administrator under the terms of said Code Section 9352-61, supra, as a result of injuries suffered by the plaintiff on December 24, 1952, as complained of; (3) that the amendment of said Section 9352-61, Miss.Code of 1942, Rec., by Chapter 229, Laws of 1954, after the date of the accident complained of, so as to make nonresident administrators of nonresident owners of motor vehicles that were operated on the public roads of the State of Mississippi by said owners at the time of or prior to their death subject to substituted service of summons under the terms of said Section, and subject to the jurisdiction of the Mississippi courts, was retroactive in so far as this case was concerned, and therefore violative of Article I, Section IX, Clause 3, of the Constitution of the United States, and of Section 16 of the Mississippi Constitution; and (4) that no cause of action could have been maintained by the plaintiff against the defendant nonresident administrator's intestate during his lifetime for damages for her injuries suffered in said accident on December 24, 1952, and no cause of action for such damages survived to the plaintiff against said defendant nonresident administrator.

The motion to dismiss was heard on October 3, 1960, and at the conclusion of the hearing the trial judge sustained the motion and entered a final judgment dismissing the cause for lack of jurisdiction.

The appellant's attorneys have assigned and argued three points as grounds for reversal of the judgment of the lower court, viz.: (1) That the court erred in dismissing the case for want of jurisdiction of the subject matter of the action; (2) that the court erred in dismissing the case for want of jurisdiction over the person of the defendant nonresident administrator; and (3) that the court erred in holding that the defendant had not entered an appearance in the cause.

We think that the trial judge erred in dismissing the case for lack of jurisdiction of the person of the nonresident administrator and of the subject matter of the suit.

Section 1881, Miss.Code of 1942, Rec., provides that, 'Where the summons or citation, or the service thereof, is quashed on motion of the defendant, the case may be continued for the term, but defendant shall be deemed to have entered his appearance to the succeeding term of the court.'

This Court has held in numerous cases that, where a defendant appears without any reservation and without specifically reserving his right to object to the jurisdiction of the person of the defendant, and files a motion to quash, whether such motion be sustained or overruled, the defendant waives any question of jurisdiction over his person; but he does not waive jurisdiction over the subject matter of the action. Batson & Hatten Lbr. Co. v. McDowell (1931), 159 Miss. 322, 131 So. 880. This Court has also held, in keeping with the provisions of the above mentioned statute, that the appearance of the defendant on a motion to quash, if the motion is sustained, operates to continue the case until the next term of the court and to enter the defendant's appearance at the next term of ...