Gillard v. Great Southern Mortg. & Loan Corp.

• Decision Date: 01 February 1978
• Docket Number: No. 49859,49859
• Citation: Gillard v. Great Southern Mortg. & Loan Corp., 354 So.2d 794 (Miss. 1978)
• Parties: Christine GILLARD and Marietta Green, Defendants-Appellants, v. GREAT SOUTHERN MORTGAGE & LOAN CORPORATION, Plaintiff-Appellee.
• Court: Mississippi Supreme Court

Page 794

354 So.2d 794

Christine GILLARD and Marietta Green, Defendants-Appellants, v.GREAT SOUTHERN MORTGAGE & LOAN CORPORATION, Plaintiff-Appellee.

No. 49859.

Supreme Court of Mississippi.

Feb. 1, 1978.

Kenneth Mayfield, Tupelo, for defendants-appellants.

C. Ashley Atkinson, McComb, for plaintiff-appellee.

Before PATTERSON, C. J., and ROBERTSON and BROOM, JJ.

PATTERSON, Chief Justice, for the Court:

This appeal concerns the jurisdiction of the County Court of Pike County.

Great Southern Mortgage & Loan Corporation, a nonresident corporation domiciled in Oakdale, Louisiana, brought suit in the County Court of Pike County, Mississippi, against Christine Gillard, an adult resident citizen of Calhoun County, Mississippi, and Marietta Green, an adult resident citizen of Marshall County, Mississippi.It alleged the defendants executed a promissory note to the plaintiff and were in default, wherefore judgment was demanded for the sum due, interest and attorney's fees.

Christine Gillard was personally served with process in Calhoun County and Marietta Green was personally served with process in Marshall County.Neither of the defendants responded to the process and a default judgment was entered against them in Pike County.Motivated by writs of garnishment based upon the judgment, they moved, subsequent to the adjournment of court, to vacate the judgment which was sustained by the court.

The judgment creditor, Great Southern Mortgage & Loan Corporation, appealed to the circuit court which reversed the county court, reinstating its original default judgment.Gillard and Green appeal to this Court.

The sole issue is whether the county court had venue jurisdiction of the appellants based upon their failure to respond to personal service of process.In deciding it we note the cause of action did not accrue, the defendants do not reside, nor was process served in Pike County.Additionally, it is conceded the suit was filed in such county for the convenience of the appellee and its attorney.

The appellants rely upon Bryant v. Lovitt, 231 Miss. 736, 97 So.2d 730(1957), for reversal.There Bryant contended he had the right to be sued in the county of his residence and household as provided by Mississippi Code Annotated section 1433(1942)(§ 11-11-3, Miss.Code Ann.(1972)).We upheld this contention and rejected the argument that Bryant had waived venue by not moving for a change of venue to the county of his residence.It appears to us that Bryant is probably in point by analogy.However, there is a difference in the facts inasmuch as Bryant contended he did not have personal notice of the suit until writs of garnishment issued on the judgment to his employer.The returns in Bryant indicate his wife was served with process which he attacked averring she had refused to accept it.No issue of this nature presently exists because the defendants were personally served with process.

Nevertheless, the appellee concedes that Bryant, supra, must be overruled if it is to prevail.The argument is advanced that Bryant has been substantially eroded by Wofford v. Cities Service Oil Co., 236 So.2d 743(Miss.1970), andLeake County Coop (AAL) v. Dependents of Barrett, 226 So.2d 608(Miss.1969), leaving its holding in doubt.

In Leake County Coop(AAL) the issue of venue jurisdiction was raised for the first time after the petitioners had participated in a workmen's compensation hearing, an appeal to the circuit court and to this Court.We held the Circuit Court of Leake County had jurisdiction on appeal from the Workmen's Compensation Commission although it initially lacked venue because the injury occurred in another county.After stating the difference between jurisdiction and venue, "(j)urisdiction connotes the power to decide a case on the merits, while venue connotes locality, the place where the suit should be heard,"we held the movants had not seasonably filed for a change of venue and thereby waived it.We relied upon Mississippi Code Annotated section 1441(1942)(§ 11-11-17, Miss.Code Ann.(1972)), the general statute for the decision:

. . . such action shall not be dismissed because of such lack of proper venue, but on objection on the part of the defendant shall, by the court, be transferred to the venue to which it belongs.(226 So.2d at 615)

We are of the opinion Leake County Coop(AAL) is not in point for the reason the present appellants did not participate in the lower court trial as was the case in the decision cited.

In Wofford, supra, a suit in Hinds County against a resident of such county and two residents of Chickasaw County, process was served in conformity with Mississippi Code Annotated section 1847(1942)(§ 13-3-9, Miss.Code Ann.(1972)), the statute for process upon joint defendants of different counties.The Chickasaw Countydefendants were personally served, but summons and alias summons for the Hinds Countydefendant were returned "not found."Thereafter, default judgment was taken against the Chickasaw Countydefendants.

Over a year later the judgment debtors moved to set the judgment aside because the Hinds Countycourt lacked venue jurisdiction.The motion was overruled and when the case reached this Court, we held it was not filed within the time frame of Mississippi Code Annotated section 1433(1942)(§ 11-11-3, Miss.Code Ann.(1972)).We relied upon Ainsworth v. Blakeney, 232 Miss. 297, 98 So.2d 880(1957), andKing v. Ainsworth, 225 Miss. 248, 83 So.2d 97(1955), for the decision.These cases reannounced the principle that venue is waived where a defendant does not timely apply for a transfer.A review of these cases again reveals the defendants participated in the trials and to that extent both differ from the facts in Wofford and this case.

In Wofford the Chickasaw Countydefendants did not participate in the trial, but they were served with process pursuant to the statute for joint defendants of different counties and more importantly, there is no evidence or suggestion the declaration was filed in Hinds County to invoke the jurisdiction of its courts to the detriment of the Chickasaw Countydefendants.To the contrary, it appears to be a suit brought in good faith in a county wherein one of the joint defendants resided.It differs from the present suit which was filed in Pike County with full knowledge that neither of the defendants resided or would be found there.In our opinion, neither Leake County Coop (AAL), supra, nor Wofford, supra, is dispositive of this appeal.

In our research we have not found any case in which the plaintiff has intentionally filed suit in a county not the residence of the defendant or where it was known he would not be found for the purpose of obtaining venue jurisdiction contingent upon the defendant's failure to apply for transfer to the county of his residence.Bryant, supra, in our judgment, is not a satisfactory basis for this decision because its process was served upon the wife of the defendant, creating an issue not presently relevant and, as mentioned, neither Wofford, supra, nor Leake County Coop (AAL), supra, is dispositive of the issue.

Additionally, in deciding the issue, we do not determine the county court erred in its reliance upon Bryant v. Lovitt, 231 Miss. 736, 97 So.2d 730(1957), in vacating the default judgment nor that the circuit court erred in reinstating it under Wofford v. Cities Service Oil Co., 236 So.2d 743(Miss.1970).The divergent judgments are the result of differing opinions of this Court which have arisen through the years, leaving their meanings in doubt.Neither do we hold or imply that this suit was not brought in good faith because an interpretation, not illogical, of our decisions lends considerable support to plaintiff's position.

In our opinion Mississippi Code Annotated section 11-11-3(1972), applicable to the county courts through Section 11-9-1, must be construed to determine the legislative intention concerning venue.It provides in pertinent part:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, . . . or in the county where the cause of action may occur or accrue except where otherwise provided, . . . If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, . . . the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence . . . .(Emphasis added.)

The section's major theme is that civil actions shall be brought in the county in which a defendant may be found or the cause of action occurs or accrues.The defendant's right to be sued in accord with the statutory terms has long been construed to be valuable and substantial, not a mere technical right.Jefferson v. Magee, 205 So.2d 281(Miss.1967);Crosby v. Robertson, 243 Miss. 420, 137 So.2d 916(1962);Long v. Patterson, 198 Miss. 554, 22 So.2d 490(1945), andTrolio v. Nichols, 160 Miss. 611, 133 So. 207(1931).The question actually presented is whether a plaintiff may intentionally bypass a mandate of the statute in order to invoke a later provision therein.We think it cannot because statutes must be construed in their entirety giving consideration to the words used as well as the purpose the legislature sought to accomplish by the enactment.Aikerson v. State, 274 So.2d 124(Miss.1973).

A study of the entire statute makes apparent, we believe, that the legislative purpose was to establish venue of a defendant in the county where he might be found, usually the county of his residence, or where the cause of action occurs or accrues.It also recognizes that mistakes will inevitably be made and that suits will be erroneously, but in good faith, filed in counties where the defendant cannot be found and where no cause of action arose.In that event the statute provides a saving clause designed to protect the...