Holyfield v. State, to Use of Adams

• Decision Date: 14 December 1942
• Docket Number: 35115.
• Citation: 10 So.2d 841,194 Miss. 91
• Court: Mississippi Supreme Court
• Parties: HOLYFIELD et al. v. STATE, to Use of ADAMS.

10 So.2d 841

194 Miss. 91

HOLYFIELD et al. v. STATE, to Use of ADAMS.

No. 35115.

Supreme Court of Mississippi

December 14, 1942

W E. McIntyre and H. H. Bullock, both of Brandon, for appellants.

J Ed Franklin and John G. Burkett, both of Jackson, for appellee.

ROBERDS Justice.

Appellee Rosa Adams, as administratrix of the estate of Eddie Adams deceased, seeks, as complainant in this bill, to recover of defendants, Holyfield and the United States Fidelity & Guaranty Company, a nonresident corporation, surety on Holyfield's bond as Sheriff of Rankin County, Mississippi, damages for the death of Eddie Adams caused, it is alleged, by a wrongful and tortious act of said Holyfield committed as such sheriff in Rankin County.

The bill was filed in Pike County and joined as garnishee-defendants certain residents of that County, who were engaged in the insurance business therein, the bill averring that said resident defendants were indebted to, or had in their possession property or effects of, said nonresident surety.

The resident defendants, by answers, denied indebtedness to, and possession of property or effects of, said surety, accompanying their answers with motions to quash and dismiss the attachment on that ground. Testimony was taken upon this preliminary factual issue. No point is made on that procedure. The Chancellor overruled the motions. That holding is assigned here as error. Without detailing the evidence, we think, in the present state of the record-proof and in view of Section 5228, Mississippi Code of 1930, the finding of the Chancellor was correct.

Holyfield and his bondsman and two other defendants, residents of Rankin County, made a motion to change the venue of this suit to Rankin County, on the ground that Holyfield is the principal defendant, and that he is a householder and a resident citizen and the sheriff of Rankin County, in which County the wrong, if there be a wrong, was committed. The Chancellor denied the motion.

Section 363, said Code, defining the venue of suits in chancery, after specifying the venue under particular conditions, none of which cover the situation here, says "and all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found".

Chapter 248, General Laws of Mississippi 1940, page 417, provides: "Venue of actions, what county generally-actions against public officer to be brought in county of his residence.* * * If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, or if a public officer be sued in any such action, out of the county of his household and residence, although a surety or sureties, or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed, on his application, * * * to the county of his household and residence,". This Act amended Section 495, Code of 1930, which is in Chapter 12 under the heading "circuit courts". However, Section 474 of said Code, under the same heading, provides: "All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever." In Palmetto Fire Ins. Co. v. Allen, 141 Miss. 681, 105 So. 482, 769, and Thomas v. Rosenberg & Sons, 153 Miss. 314, 120 So. 732, and Huff v. Murray, 171 Miss. 656, 158 So. 475, this court held that Section 526 of Chapter 12 on Circuit Courts, requiring that there shall be annexed to or filed with the "declaration" a copy of any writing on which the action is founded, with the names of the subscribing witnesses, applies to chancery courts, and the last two cases held that Section 527 of said Chapter 12, requiring that a copy of any writing of which profert is, or ought to be, made shall be annexed to the pleading also applies to the chancery court. In Shackelford v. New York Underwriters Ins. Co., 189 Miss. 396, 198 So. 31, we held that Section 520, under said chapter on Circuit Courts, providing that the manner of commencing an action is by filing in the office of the Circuit Clerk a declaration, on which a summons for the defendant shall be immediately issued, is applicable to suits in chancery.

We think this case is not restricted by its nature to law courts and that it is taken from under Section 363 by Chapter 248 supra, and that said chapter is applicable to this proceeding. Reason supports this conclusion. The office of sheriff and the proper performance of his duties are very important to the public welfare. If he could be sued in any county where some one may owe, or have property of his bondsman, then he could be forced to any and all...