Grenada Bank v. Petty

• Decision Date: 02 December 1935
• Docket Number: 31919
• Citation: Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316 (Miss. 1935)
• Court: Mississippi Supreme Court
• Parties: GRENADA BANK v. PETTY

164 So. 316

174 Miss. 415

GRENADA BANK v. PETTY

No. 31919

Supreme Court of Mississippi

December 2, 1935

Division A

1. ABATEMENT AND REVIVAL.

Court may grant defendant permission to withdraw his plea to merits and plead in abatement.

2 PLEADING. Admitting jurisdiction of court by filing plea in abatement does not preclude party from pleading absence of venue.

"Jurisdiction" connotes power to decide case on merits, while "venue" connotes locality, the place where suit should be heard.

3. MALICIOUS PROSECUTION.

Termination of prosecution complained of in favor of defendant is material element of cause of action for malicious prosecution, without which no cause of action therefor comes into existence.

4. CORPORATIONS. Under statute fixing venue of actions against domestic corporations in county where domiciled or in county where cause of action accrued, venue of action against domestic corporation for malicious prosecution held in county where prosecution complained of terminated in defendant's favor, since cause of action could not come into existence until such termination (Code 1930, section 495).

"Cause of action" may refer to right to institute and carry on action or to facts giving rise to action. "Accrue" means to come into existence as an enforceable claim; to vest as a right. "Occur" is without technical import and means to meet one's eye; to be found or met with; to present itself; to appear; hence, to befall in due course; to happen. "Or" may suggest alternative, but it may also indicate appositional relation of thought, i. e., it may separate words or phrases the second of which is equivalent or is explanatory of first; it may be used to express alternative of terms, definitions, or explanations of same thing in different words, introducing synonym for preceding term; and in this sense may be construed as having same meaning as being, otherwise, otherwise called, that is, that is to say, to-wit.

HON. W H. Cox, Judge.

APPEAL from the circuit court of Sunflower county HON. W. H. Cox, Judge.

Action by L. J. Petty against the Grenada Bank. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Judgment reversed.

Cooper & Thomas, of Indianola, Watkins & Eager, of Jackson, and R H. Nason, of Belzoni, for appellant.

The Grenada bank is a domestic corporation, chartered under the laws of Mississippi and domiciled in Grenada county. Jurisdiction of this defendant cannot be justified in Sunflower county because the Grenada bank had agents in Sunflower county or had a branch in Sunflower county.

Section 495, Code of 1930; 14 C. J., sec. 416, page 338.

The only other way in which the Sunflower county court could have jurisdiction of the defendant is to show that the cause of action occurred or accrued in that county. The question therefore recurs as to whether the cause of action occurred in Sunflower county.

The declaration has no possible element of false arrest or false imprisonment. It is purely and simply a charge of malicious prosecution.

We contend that the venue lies in Humphreys county because the charge was there made, the subsequent trial was there held and the fact that the arrest occurred in Sunflower county did not permit a malicious prosecution case to be tried there, we contending that the cause of action accrued in Humphreys county.

Hubbard v. Lord, 59 Tex. 384; Blalock v. Randall, 76 Ill. 224; Rhodes v. King, 52 Ala. 272; Yates v. Lansing, 9 Johns 395; Benham v. Sterns, 33 N.H. 247; Wills v. Whittier, 45 Me. 544; Conpol v. Ward, 106 Mass. 289; Johnson v. Maxon, 23 Mich. 129; Waterman on Trespass, sec. 293, pages 346, 347 and 348.

We have abolished all common-law forms of action, but the principles upon which the distinctions rest are as applicable to our system as to any other. Where the arrest is made under lawful process, we must proceed alone against the party who sued it out, and must allege malice and want of probable cause.

Leach v. Stone, 264 S.W. 620; Hubbard v. Lord, 59 Tex. 384; Raleigh v. Cook, 60 Tex. 438; Hilliard v. Wilson, 65 Tex. 286; 277 S.W. 403; 286 S.W. 614; 18 S.W.2d 857; 34 S.W.2d 314; 55 S.W.2d 247; 62 S.W.2d 661; Smith v. Rogers, 34 S.W.2d 312; State ex rel. News Publishing Co. v. Park, 165 N.W. 289; Goodwin Preserving Co. v. Davis, 258 S.W. 97; Kalberg v. Greiner, 8 P.2d 799; Age-Herald Publishing Co. v. Huddleston, 206 Ala. 40, 92 So. 193, 37 A.L.R. 898.

An arrest is not essential to the cause of action of malicious prosecution.

Ballard v. Cash, 230 S.W. 48; 155 Ky. 254; 50 L.R.A. (N.S.) 392; 168 Ky. 301; 181 S.W. 1108; Coffey v. Myers, 84 Ind. 105; Hammill v. Mack International Motor Truck, 141 A. 775; Stewart v. First National Bank & Trust Co., 18 P.2d 801; 18 R. C. L., sec. 9, page 20; 38 C. J., Malicious Prosecution, sections 9 and 14, pages 388 and 390; Halberstadt v. N. Y. Life Ins. Co., 21 L.R.A. 293, 86 N.E. 801; Holmes v. Johnson, 44 N.C. 44; Ruston v. Biddle, 43 Ind. 513; Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 292.

It is above and beyond the function and province of a bank to prosecute for violation of the criminal laws. No employee or official of such bank has the inherent power to prosecute criminally. It is beyond the scope of the authority of any subordinate employee to begin such prosecution, regardless of motives or intent.

Fisher v. Westmoreland, 101 Miss. 180, 157 So. 563; Russell v. Palatine Ins. Co., 106 Miss. 290, 63 So. 644; Davis v. Price, 133 Miss. 236, 97 So. 557; Young v. Price Mercantile Co., 148 So. 643; Kraft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Lamm v. Charles Stores Co., 77 A.L.R. 923; Baltimore, C. & A. R. Co. v. Ennalls, 69 A. 638, 16 L.R.A. (N.S.) 1100; Carter v. Howe Mach. Co., 51 Md. 290, 34 Am. Rep. 311; Beiswanger v. American Bonding & T. Co., 98 Md. 287, 57 A. 202; Daniel v. Atlantic Coast Line R. Co., 136 N.C. 517, 67 L.R.A. 455, 48 S.E. 816; 7 C. J., page 478; Chapter 85, Code of 1930; Chapter 146, Laws of 1934; Muller v. Hillenbrand, 8 A.L.R. 1455; 14a C. J. 349, par. 2211, and note 44; Reconstruction Finance Corporation v. Rawlings, 76 F.2d 566; Awotin v. Atlas Exchange National Bank, 79 L.Ed. 772.

Appellant did not waive the lack of jurisdiction.

Even if the original declaration had not been abandoned and no amended declaration had been filed, there was no waiver of jurisdiction when the court ordered the withdrawal of the plea and permitted the filing of the plea in abatement. This left the matter of pleading at the time of the filing of the plea in abatement as if no plea had ever been filed. Under no possible theory was the plaintiff prejudiced thereby in any of his rights, remedies or defenses, nor was there any delay in the trial of the case.

Kern v. Huidekoper, 26 L.Ed. 354; 1 C. J., Abatement and Revival, page 267, sec. 590-J and 593; Shaw v. Brown, 42 Miss. 309; Fireman's Fund Ins. Co. v. Cole, 152 So. 872; 49 C. J., Pleading, page 663, sec. 941; 67 C. J., page 302, sec. 6, and page 308, sec. 9; Batson & Hatten Lbr. Co. v. McDowell, 131 So. 880; McNeely v. Y. & M. V. R. R. Co., 119 Miss. 897.

Allen & Allen, of Indianola, for appellee.

It is true that criminal prosecution is not one of the purposes for which a bank is organized, and that the prosecution of cases is left as the duty of those charged with the enforcement of criminal law. It is also true that no corporation, banking or otherwise, has been delegated the power to prosecute people; yet, a railroad company, an insurance company, and all other corporations in the state, when they do prosecute a person wrongfully, become liable for malicious prosecution, and where absence of probable cause and ulterior motives that amount in law to malice are present in the prosecution, all corporations in Mississippi, whether a banking corporation or not, becomes liable for actual and punitory damages growing out of its wrongful conduct in so doing. It cannot be said that because a corporation (which can act only through its agents) exceeds its chartered power and thereby does an injury to an individual, that its acts in so doing are beyond the pales of law to punish.

7 C. J., page 561, sec. 167; 9 A.L.R. 351; Guilleaume v. Rowe, 94 N.Y. 268, 46 Am. Rep. 141, 63 How. Pr. 175; Sleight v. Leavenworth, 5 Duer 122; Gibson v. Holmes, 78 Vt. 110, 4 L.R.A. (N.S.) 451, 62 A. 11; Collett v. Foster, 2 Hurlst. & N. 356, 157 Eng. Rep. 147, 26 L. J. Exch. (N.S.) 412, 5 Week. Rep. 790; Brooks v. Hodgkinson, 4 Hurlst. & N. 712, 157 Eng. Rep. 1021, 29 L. J. Exch. (N.S.) 93, 7 Week. Rep. 735; Barker v. Braham, 2 W. Bl. 866, 96 Eng. Rep. 510, 3 Wils. 368, 95 Eng. Rep. 1104; Wilson v. Brecker, 11 U. C. C. P. 268; Ackroyd v. Ackroyd, 3 Daly 38; Kelly v. Newark Shoe Stores Co., 190 N.C. 406, 130 S.E. 32; Takahashi v. Hecht Co., 50 F.2d 326; Shields v. Patterson, 97 Pa. S.Ct. 398; Rivers v. Yazoo & M. V. R. Co., 90 Miss. 196, 43 So. 471, 473.

It therefore follows that appellant bank is liable for the criminal prosecution complained of in this case.

Section 3380, Mississippi Code of 1930, provides that there shall be no reversal for want of jurisdiction.

The appellant waived venue.

Griffith Chancery Practice, page 154, sec. 156; 67 C. J., page 94, sec. 150; Indianola Cotton Oil Co. v. Crowley, 83 So. 409; 67 C. J., page 313, sec. 14; Franklin Fire Ins. Co. v. Brewer, 159 So. 545.

Appellant waived the venue when it filed its general issue plea. This venue then became a property right of the appellee which was vested in him under the law and which neither the appellant nor the courts could take away from the appellee without his consent.

Irrespective of waiver, Sunflower county had venue.

The cause of action sued on by appellee grows out of a progressive wrong commencing with the action of appell...