Great Southern Box Co. of Miss. v. Barrett

• Decision Date: 06 May 1957
• Docket Number: No. 40484,40484
• Citation: 231 Miss. 101,94 So.2d 912
• Parties: GREAT SOUTHERN BOX COMPANY, Inc., OF MISS. and W. D. Thompson, v. Mrs. Leona BARRETT, Administratrix of the Estate of Otis Barrett, Deceased.
• Court: Mississippi Supreme Court

Page 912

94 So.2d 912

231 Miss. 101

GREAT SOUTHERN BOX COMPANY, Inc., OF MISS. and W. D.

Thompson, v. Mrs. Leona BARRETT, Administratrix of the Estate of Otis

Barrett, Deceased.

No. 40484.

Supreme Court of Mississippi.

May 6, 1957.

Butler, Snow, O'Mara, Stevens & Cannada, Jackson, J. B. Sykes, J. W. Walker, Mendenhall, for appellants.

Crisler, Crisler & Bowling, Jackson, Russell & Little, Magee, for appellee.

GILLESPIE, Justice.

This appeal involves three questions of venue. Suit was brought in the Circuit Court of Simpson County by Mrs. Leona Barrett, administratrix of the estate of Otis Barrett, deceased, herein called plaintiff, against Great Southern Box Company, Inc. of Mississippi, a corporation domiciled in Rankin County, hereinafter called Box Company, and Box Company's servant, W. D. Thompson, a resident citizen and householder of Lowndes County, and A. W. McRaney, administrator of the estate of Sam Palmer, deceased, Palmer having died a resident citizen of Simpson County where letters of administration were granted to McRaney. The Accident out of which the action arose occurred in Hinds County. The suit proceeded until plaintiff rested, at which time all defendants announced that they had no evidence. The jury returned a verdict in favor of McRaney, administrator, and against Box Company and Thompson for $35,000. Plaintiff's deceased was riding in an automobile being driven by Sam Palmer, deceased, which vehicle was traveling west and which collided with a truck belonging to Box Company and being driven by Thompson which was traveling east. The truck cut to its left into the north lane of the highway. The vehicles collided. The point of impact was three or four feet north of the center line.

The suit was filed within six months after the appointment and qualification of McRaney, administrator. McRaney, administrator, did not raise the issue that he was prematurely sued. Box company and Thompson filed a motion for change of venue in which it was contended that neither could be sued in Simpson County because neither was served with process in that county, the accident occurred in Hinds County, Box Company was domiciled in Rankin County, and Thompson was a resident householder of Lowndes County; that McRaney, administrator, the only resident defendant in Simpson County, was sued within four days after McRaney, administrator, was issued letters, and Section 612, Mississippi Code of 1942, provides that an administrator shall not be sued until after the expiration of six months from the date of letters of administration.

The question raised by this motion is whether a codefendant of an administrator may rely on Code Section 612 on motion for change of venue when the administrator did not object to the suit being prematurely brought. The purpose of Section 612 is to allow time to the administrator to examine and understand the condition of the estate, to provide the means of paying debts, if practicable, without suit by collection of the assets; and to be advised of any demands against it which it may be necessary to defend. Reedy v. Armistead, 31 Miss. 353. The administrator could have had the suit dismissed as to him if he had so moved, but he did not do so; therefore, the only party for whose benefit the statute was enacted waived the right to object to the suit being prematurely brought. 34 C.J.S. Executors and Administrators Sec. 729, p. 730. Codefendants of the administrator are afforded no benefit or protection by the statute and have no right to raise it.

The second motion of Box Company and Thompson for change of venue was grounded on the allegation that McRaney, administrator, the local defendant, agreed to serve as administrator of the estate of Sam Palmer at the request of some of the attorneys representing plaintiff who prepared the papers in connection with the appointment and qualification of McRaney as such administrator; that no property has come into the hands of McRaney, administrator; that some of the attorneys representing plaintiff prepared the answer of McRaney, administrator, in this suit; that some of plaintiff's attorneys are representing McRaney as administrator in defending this case and in the administration proceeding. The motion charged that the joinder of McRaney, administrator, was a legal fraud on Box Company and Thompson in attempting to confer venue in Simpson County. After the evidence was heard on this motion the trial court made a lengthy finding of fact in which he found that none of the attorneys for plaintiff were representing McRaney in this suit or in the administration of the estate of Sam Palmer, deceased.

We think Box Company and Thompson established that some of the attorneys for plaintiff arranged to have McRaney appointed as administrator of the estate of Sam Palmer, deceased, and that they did this at the instance of the mother of Sam Palmer, deceased; that there were no known assets belonging to the estate of Sam Palmer, deceased; that some of plaintiff's attorneys assisted in the preparation of the papers for the appointment and qualification of McRaney, administrator, and two of them signed McRaney's bond as administrator. The trial judge was justified in finding that none of plaintiff's attorneys thereafter represented McRaney in the administration of the Sam Palmer estate or this suit. McRaney dictated his answer in this suit in the office of plaintiff's attorneys, which was next to the office of McRaney, who is also an attorney, and who had no stenographer. Plaintiff's attorneys also gave McRaney some of the information used in preparing the answer.

Appellants, Box Company and Thompson, rely on such cases as Trolio v. Nichols, 160 Miss. 611, 132 So. 750, 133 So. 207, and Nicholson v. Gulf, Mobile and Northern R. Co., 177 Miss. 844, 172 So. 306, which involve situations where plaintiff fraudulently joined local defendants for the purpose of fixing venue. Those cases are not applicable here. Appellants' motion was properly overruled...