Fireman's Fund Ins. Co. v. Cole

• Decision Date: 26 February 1934
• Docket Number: 30912
• Citation: 169 Miss. 634,152 So. 872
• Parties: FIREMAN'S FUND INS. CO. v. COLE
• Court: Mississippi Supreme Court

152 So. 872

169 Miss. 634

FIREMAN'S FUND INS. CO. v. COLE

No. 30912

Supreme Court of Mississippi

February 26, 1934

Division A

Suggestion Of Error Overruled April 23, 1934.

APPEAL from circuit court of Lee county, HON. THOS. H. JOHNSTON Judge.

Action by Mrs. Lallie D. Cole against the Fireman's Fund Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.

Reversed, and cause dismissed.

Stovall & Stovall, of Okolona, and Watkins & Eager, of Jackson, for appellant.

The county of Lee county did not have territorial jurisdiction of the case at bar because the action was not brought in the county where the loss occurred or in the county in which plaintiff resided.

Sec 497, Miss. 1930 Code; 59 C. J. 992, par. 593; Hamner v. Lbr. Co., 100 Miss. 349; Dean v. Brannon, 104 So. 173, 139 Miss. 312; Hercules Powder Co. v. Tyrone, 124 So. 74, 155 Miss. 75; Sandford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887.

Even if this suit could have been brought in a county where service of process was had on an agent of appellant company, still the county court of Lee county, Mississippi, did not have territorial jurisdiction of this cause because process was not had on an agent of the company duly appointed to receive process under our statutes.

Secs. 4167, 4177 and 5165, chap. 177, Miss. Code of 1930; National Surety Co. v. Board of Supervisors, 120 Miss. 706, 83 So. 8; F. & C. Co. v. Cross, 127 Miss. 31, 89 So. 789; Great So. Life Ins. Co. v. Gomillion, 145 Miss. 314, 110 So. 770; Cont. Ins. Co. v. Gillmer, 146 Miss. 22, 111 So. 741.

The county court of Lee county never having had territorial jurisdiction of the action, if the action should have been brought in county where plaintiff resided or loss occurred, the appellant did not, after a hearing upon a plea in abatement, and a judgment of respondent ouster, waive any rights to present this question of territorial jurisdiction for review by this court by filing a plea of general issue and going to trial upon the merits.

Central Trust Co. v. McGeorge, 151 U.S. 130, 38 L.Ed. 99; Burnrite Coal Co. v. Riggs, 274 U.S. 206, 71 L.Ed. 985; Secs. 532, 544 and 600, Miss. Code of 1930; Christian v. O'Neal, 46 Miss. 669; Y. & M. V. R. Co. v. McNeely, 121 Miss. 803, 83 So. 815; Bauer v. Roth, 4 Rawls 83; Jackson v. Lemler, 83 Miss. 37; McLeod, Exec. v. Shelton, 42 Miss. 517; Cook v. Pitts, 114 Miss. 39, 74 So. 777; Goodpaster v. C. M. & G. R. Co., 240 Ill.App. 267; 1 C. J. 44, par. 36; Barry v. Wachosky, 77 N.W. 1080; Equitable Mortgage Co. v. Weddington, 21 S.W. 576.

The common law rule is well established that when a plea of the venue is filed at the proper time and the same is overruled there is no waiver of the issues therein presented by a subsequent plea in bar. This rule is not changed merely because the test of the proper venue might be held to be whether a duly appointed agent of the appellant company was served with process in the county. Where, as here, no such agent was ever in Lee county and said county never had or could have territorial jurisdiction the question continued to be one of venue and did not shift merely to a question of notice. Therefore the right to present the issue of venue upon appeal was not waived by the subsequent plea in bar.

Camden Fire Ins. Co. v. Delaney Moss. Co., 118 So. 535; Fisher v. Ins. Co., 112 Miss. 20, 72 So. 846; Solomon v. Tupelo Compress Co., 72 Miss. 822; M. & R. C. R. Co. v. Glober, 29 So. 89, 78 Miss. 467; Arnett v. C. C. & R. F. Smith, Inc., 165 Miss. 53, 145 So. 638; Turner v. Williams, 162 Miss. 258, 139 So. 606; Batson & Hatten Lbr. Co. v. McDowell, 159 Miss. 322, 131 So. 880; Miss. C. R. Co. v. Calhoun, 105 So. 519, 140 Miss. 289; Sec. 2999, Miss. Code of 1930; Nat. City Bank v. Stupp Bros. Co., 147 Miss. 747, 113 So. 340; McCoy v. Watson, 122 So. 368; Harkness v. Hyde, 98 U.S. 467; So. Pac. v. Denton, 146 U.S. 202, 36 L.Ed. 943; State v. Superior Court, 193 P. 676.

Geo. T. & Chas. S. Mitchell, of Tupelo, for appellee.

The question of proper venue in this cause is to be determined by section 497, Mississippi Code of 1930.

It is clear that the statute in question with reference to foreign fire insurance corporations provides four different venues in causes of action against such corporations, either of which the plaintiff may elect to avail himself of. He may file his cause of action in any county in which a loss may occur; or he may file his cause of action in any county where the principal place of business of such corporation may be; or where the insurance corporation is a foreign corporation, he may file his cause of action in any county where service of process may be had oil an agent of such corporation; or, he may file his cause of action in any county where the loss occurred, or where the plaintiff resides if the process is served upon the insurance commissioner of the state of Mississippi, and him alone.

In the case now before the court, service of process was had upon the insurance commissioner and also service of process was had in Lee county upon Mrs. Annette Wicks, who, at the time of the execution of the contracts of insurance involved in these cases, was president of Wicks Insurance Agency, domiciled in Chickasaw county, and who wrote the contracts of insurance involved. This service of process was in accord with section 4167, Misissippi Code of 1930.

While jurisdiction of the subject-matter of a cause of action cannot be waived, the jurisdiction of the person which is obtained through process or appearance, and the territorial jurisdiction, commonly called venue, can be waived because these requirements do not go to the fundamental jurisdiction of a court but relate only to the question of exercising powers derived from, and inherent in, a jurisdiction already vested.

Wollf et al. v. McGaugh, 57 So. 775; 27 R. C. L. 783, sec. 6; Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 211, 71 L.Ed. 1005; Central Trust Co. v. McGeorge, 151 U.S. 129, 38 L.Ed. 98; Creigh v. Westinghouse C. K. & Co., 214 U.S. 249, 53 L.Ed. 984.

In transitory causes of action, jurisdiction of a court is complete when the court has jurisdiction of the subject-matter (which is conferred upon it by the constitution, the law, or the statutes), and jurisdiction of the person (which may be acquired by the service of process, waiver, or voluntary appearance).

We confidently assert that all questions going to the jurisdiction of the person of a litigant or to the territorial jurisdiction, or venue, may be waived either expressly or by implication.

There can be no possible question but that the court was vested with the jurisdiction of the subject-matter and there can be no question but that the court acquired jurisdiction of the persons of these appellants; or, if any defect existed therein, same was waived by appellants' making an appearance in this cause in the court below.

Camden Fire Ins. Ass'n v. Delaney-Moss Co., 118 So. 537; Fisher v. Pacific Mutual Life Ins. Co., 72 So. 846; Corbett v. Physicians Casualty Ass'n, 16 L. R. A. (N. S.) 177; Christian v. O'Neal et al., 46 Miss. 675.

Argued orally by W. H. Watkins, for appellant, and by Geo. T. Mitchell, for appellee.

Copy of agreed statement of facts:

"It is hereby agreed between Geo. T. & Chas. S. Mitchell, counsel for the plaintiff, Mrs. Lallie D. Cole, and Stovall &amp Stovall, counsel for the defendant in the above styled suit that for the purpose of the hearing on defendant's plea in abatement to the declaration of plaintiff and plaintiff's replication to said plea that the following facts are agreed upon, to-wit:

"That the loss sued for by the plaintiff, Mrs. Lallie D. Cole, under the alleged fire insurance contract made exhibit A to her declaration occurred in the Second Judicial District of Chickasaw county, Mississippi, and did not occur in the county of Lee, Mississippi; that said defendant insurance company is a foreign corporation, domiciled at the place set out in said plea in abatement; that before and at the time of the commencement of said suit and at this time, the plaintiff, Mrs. Lallie D. Cole does and did not reside in the county of Lee, Mississippi; that the contract of insurance made exhibit A to the declaration in this suit was written by Wicks Insurance Agency, which has its office and place of business at Okolona, Chickasaw county, Mississippi, and was written at a time when said Wicks Insurance Agency was the duly authorized agent of defendant to write fire insurance contracts; that Mrs. Annette Wicks was the president of said Wicks Insurance Agency and authorized to sign said contract of insurance, but that at the time of service of process upon Mrs. Annette Wicks by the sheriff of Lee county on the 12th day of August, 1932, she was not a duly appointed and authorized agent of said insurance company to execute contracts of fire insurance nor was she appointed by it as agent for receipt of process as provided by section 5165, paragraph 4, Code of 1930. It is further agreed that at the time of service of process upon Mrs. Annette Wicks, she and R. A. Dean conducted a partnership known as Dean Insurance Company at Okolona, Chickasaw county, Mississippi, and that said R. A. Dean represented the defendant in this suit as agent to write fire insurance contracts for it but that said Mrs. Annette Wicks was not authorized by said defendant company to execute on its behalf contracts of fire insurance. Policies that are written by said Dean Insurance Agency are signed 'Dean Insurance Agency by R. A. Dean.'

"Witness our signatures this the 15th day of September, 1932.

"GEO. T. & CHAS. S. MITCHELL,

"BY GEO. T. MITCHELL,

"Attorneys for plaintiff.

"STOVALL & STOVALL,

"By R. C. STOVALL,

"Attorneys...