Gibson v. Mills

• Decision Date: 07 June 1909
• Docket Number: 14,043
• Court: Mississippi Supreme Court
• Parties: JOHN D. GIBSON v. HARRY C. MILLS ET AL

49 So. 568

95 Miss. 726

JOHN D. GIBSON v. HARRY C. MILLS ET AL

No. 14,043

Supreme Court of Mississippi

June 7, 1909

FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.

Mills and another, appellees, were plaintiffs in the court below Gibson, appellant, doing business under the name Gibson Paving Company, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.

The suit was begun before a justice of the peace of district No 1, Lincoln county, in which district defendant, a resident citizen and householder of Hinds county, was temporarily sojourning at the beginning of the suit, performing a paving contract made by him with the city of Brookhaven, and he had taken out a privilege license as a paving contractor in Lincoln county and nowhere else, and he contracted the debt sued upon in said district No. 1 of Lincoln county. The defendant objected to the jurisdiction and venue of the justice's court and losing there appealed to the circuit court and made his objection again in that court, but without success.

Judgment reversed and cause remanded.

Wells &amp Wells, for appellant.

The two sections of the Code 1906 which we think bear on this case are sections 707 and 2724.

It has been held under these sections, identically the same as in preceding codes, that ejectment and trespass quare clausum fregit are the only ordinary actions which can be brought in a county where the defendant does not reside. Archibald v. Mississippi, etc., R. Co., 66 Miss. 424, 6 So. 238.

It seems perfectly manifest that the justice court of Lincoln county and, on appeal, the circuit court of Lincoln county, had absolutely no jurisdiction whatever in this matter and the judgment is a nullity.

The case of Cain v. Simpson, 53 Miss. 521, is absolutely identical in material facts.

Marshall McCullough, for appellees.

A significant fact in this case is that John D. Gibson alone constituted the Gibson Paving Company. The only domicile that this Gibson Paving Company had at this time was in Lincoln county, where it qualified itself to do business under our law by taking out a privilege license as a contractor. This fact gave the Gibson Paving Company, although composed of one man, such a situs as made the company's domicile, and place of business in Lincoln county. That act fixed its place of business and gave it, and those composing the company, such residence and fixed business situs as that the courts of that locality had jurisdiction of the company and John D. Gibson.

It is also to be noted that the suit was brought in the district of the justice of the peace where the contract or account was made by the appellants with the appellees.

The difference between the facts in this case and the case of Cain v. Simpson, 53 Miss. 521, as cited by appell...