Hager v. Coburn

• Decision Date: 09 April 1928
• Docket Number: 26968
• Citation: Hager v. Coburn, 150 Miss. 193, 116 So. 540 (Miss. 1928)
• Court: Mississippi Supreme Court
• Parties: HAGER v. COBURN. [*]

116 So. 540

150 Miss. 193

HAGER v. COBURN. ^[*]

No. 26968

Supreme Court of Mississippi

April 9, 1928

Division A

1 EQUITY. Decree overruling motion to dismiss bill on ground defendant was nonresident of county was properly set aside at same term.

Trial court held not to have committed error in setting aside at same term of court a decree overruling motion to dismiss on ground defendant was not a resident of county, after sufficient showing by defendant in support of motion to set aside decree on such ground.

2 VENUE. Chancery court has no jurisdiction of cause where defendant had domicile and fixed place of residence in another county (Hemingway's Code 1927, section 336).

Under Hemingway's Code 1927, section 336 (Code 1906, section 561), requiring cases to be brought in chancery court of county where defendant or necessary party defendant may reside or be found, chancery court failed to acquire jurisdiction of cause where defendant had domicile and fixed place of residence in another county.

3 EQUITY. Suit to enforce decree in another suit held not ancillary so as to confer jurisdiction on court in which original decree was rendered.

Original suit to enforce collection of decree in another suit held not ancillary thereto in any sense that would confer jurisdiction on court in which original decree was rendered as respected nonresident defendant.

4. EQUITY. Dismissal on sole ground that defendant was not resident of county should be limited to dismissal for want of jurisdiction of person.

Motion to dismiss, based on sole ground that defendant was not resident of county, did not present any issue as to jurisdiction of cause of action requiring that decree be limited to dismissal of bill for want of jurisdiction of person.

HON. V. J. STRIOKER, Chancellor.

APPEAL from chancery court of Hinds county, First district, HON. V. J. STRICKER, Chancellor.

Suit by George Edward Hager against Mrs. Bessie Street Coburn. Decree for defendant, and plaintiff appeals. Reversed and rendered.

Decree reversed.

Wells, Stevens & Jones, for appellant.

The court was not justified in setting aside the first decree overruling the motion. This bill was filed in ample time, and after much effort and expense in attempting to locate the defendant, process was finally served upon her in Bolivar county. Her solicitor appeared for her in open court and presented the motion to dismiss. The motion was taken up and considered and overruled. At this hearing we did offer some evidence on behalf of the complainant and the defendant offered none. When the defendant's motion was overruled she made application to the court for a limited time in which to file an answer, and the court granted her five days in which to file her answer. This was upon her own application. Instead of filing the answer within the time applied for, other and separate counsel, to-wit: Messrs. Alexander & Alexander, presented an application to set aside the former decree and to grant the defendant the right to present her motion afresh.

We say in the first place that the first motion was properly overruled for the reason that the defendant carried the burden of fact alleged in the motion and tendered no evidence to the court whatsoever, although the regular term of court convened on the fifth Monday, the 29th day of August, and the motion was taken up in regular order at the proper time in the presence of counsel for the defendant. At the first hearing there was no application to continue the case because of the absence of the defendant, or for any other reason, and the defendant, therefore had her day in court upon her own motion. One hearing of the motion was all she was entitled to under well-known principles of practice and procedure. When her motion was overruled she applied and was granted five days to file an answer. She could have stood upon her rights and prayed an appeal to the supreme court or objected to proceeding with the cause, but none of this she did. On the contrary, she obtained indulgence in filing an answer which was due on the opening day of the term and after getting this time allowed refused to comply with the order of the court and then came in with a belated application to set aside the first decree and have a new hearing upon the motion. The court had jurisdiction of the person and of the subject-matter on the first hearing, and the defendant, therefore, had no right to present a second motion or to have a hearing thereon, and in granting the second hearing there was a clear abuse of discretion and manifest error which should reverse this cause and remand it for further proceedings in the lower court.

The Hinds county court had jurisdiction because the proceeding here is an ancillary proceeding growing out of the original suit and the necessary relief should be granted the judgment creditor in enforcing collection of the judgment. It will be noted that in the proceedings at bar the only relief sought is purely that of discovery in aid of an execution. It is not, therefore, the ordinary suit wherein a monetary claim is made against the defendant or any property sought to be recovered as by a proceeding in rem and the ordinary considerations fixing venue do not apply. If the defendant could have been sued in Hinds county as Mrs. Coburn was in this instance, and if the Hinds county court has jurisdiction to render the original decree here sought to be enforced, then surely the Hinds county court should have jurisdiction of the ancillary proceeding by way of discovery and the motion therefore to dismiss should have been overruled. 2 C. J. 1336; 15 C. J. 826; 2 C. J. 826; 27 R. C. L. 804.

The evidence upon the motion was insufficient to show that appellee had a fixed domicile or residence in Lauderdale county. We call the court's attention to the fact that appellee is a widow without any household or dwelling house of any kind in Lauderdale county and without any furniture. In other words, she is in no sense a householder and according to her own plaintive plea has not whereon to lay her head. She could therefore be classified as a transient person that could be sued anywhere that process could be served upon her. The decree complained of should be modified to show that the bill was dismissed without prejudice. Extended argument on this point is unnecessary. If the court had no jurisdiction of the person then the court ought not to have gone further and ruled that equity had no jurisdiction of this cause. The decree of the court is too broad. It should not be so languaged as to constitute a bar to any subsequent effort to seek recovery in Lauderdale county, if that should be required.

Alexander & Alexander, for appellee.

The court had no jurisdiction arising out of the fact that this defendant had on other occasions been before it. Appellant calls his bill herein "original bill." The defendant was not already before the court. Complainant prays for original summons upon defendant and prays that she be required to plead, answer or demur. It is not ancillary in the sense that it is inseparably interwoven with some former suit. The court in such former suit could never have included in its order or decree that the defendant deliver up to the sheriff, "whenever execution should issue," a list of her goods and possessions. If this proceeding is rightly conceived, every successful plaintiff, in the justice court, the county court and the circuit court, may in every case where there is a return of "nulla bona," have his bill in equity to compel a full disclosure of the whereabouts of the defendant's treasure stores, his family heirlooms, his bills and accounts received from share croppers, his holdings of corporate stock, or indeed the whereabout and contents of his hidden stocking with its meager hoardings.

Nor does the fact that the appellee may on a former occasion have permitted a hearing in Hinds county forever bar or estop her from setting up jurisdiction here. She has a right to waive jurisdiction; but this is just the obverse of the corresponding right to insist upon it. She only waives it, if at all, for the particular case. If it is optional in one case, it is optional in another. The merits of the original bill are not to be considered because the jurisdictional defense may and must be made in limine whereupon the residence of the defendant becomes the controlling consideration. The defendant had the right to restrict the issue to the matters set up in her motion to dismiss for want of jurisdiction. These allegations, in brief were that she was not a citizen resident in Hinds county, but in Lauderdale county. The learned chancellor heard the testimony on this point and found that the allegations of her motion were sustained. This should settle the matter since the court's finding upon the facts is conclusive. Nor was there any want of testimony. Counsel for appellant err in their assumption that the defendant must be a "householder" of Lauderdale county. It is true that section 500, Hemingway's Code 1927, in dealing with venue of actions in the circuit courts, permits a suit to be transferred to the county of defendant's household and residence. But we are here dealing with sec. 336 thereof, which permits actions to be brought "in the chancery court of and county where the defendant . . . may be found." While the latter statute is broader than section 500, it does not cover the instant case, because the defendant was neither found in Hinds county nor does she reside therein. The record disclosed that she was not found in Hinds county, but was found in Bolivar county. This should dispose of the question of jurisdiction, though we do not of course concede that she could have been sued in Bolivar county. Griffith, Miss. Ch. Prac.,...