Kraus v. Stewart

• Decision Date: 25 May 1920
• Docket Number: 21114
• Citation: 84 So. 463,122 Miss. 503
• Court: Mississippi Supreme Court
• Parties: KRAUS et al. v. STEWART et al

84 So. 463

122 Miss. 503

KRAUS et al. v. STEWART et al

No. 21114

Supreme Court of Mississippi

May 25, 1920

March 1920

VENUE. Rule as to venue of action for trespass on land in two or more counties stated.

Section 707, Code of 1906 (section 486, Hemingway's Code) providing for the venue of actions in the circuit court provides as to actions of trespass on land that such suit "shall be brought in the county where the land or some part thereof, is situated; but if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the county of his residence." This means the premises trespassed upon and not the particular place where the trespass occurred, and, if such premises lie partly in the county of the defendant's residence and partly in another county, suit shall be brought in the county of the defendant residence, although the act of trespass may have been committed on that part of the premises situated in the other county.

HON. R E. JACKSON, Judge.

APPEAL from the circuit court of Jefferson county, HON. R. E JACKSON, Judge.

Suit by Mrs. A. M. Stewart and others against Mrs. Bertha Kraus and others for trespass on lands and for the taking of crops. Verdict for plaintiffs for actual and punitive damages, and the defendants appeal. Affirmed.

Judgment affirmed.

Watkins & Watkins, for appellants.

A peremptory instruction should have been given in favor of the appellants in this case, because the undisputed proof showed that if any trespass at all was committed by the appellants, it was on land situated in Franklin county, Mississippi, and not in Jefferson, while the bill of particulars of appellees confines the claim to lands in Jefferson county, Mississippi.

If it shall be contended that the question was not properly raised by request for a peremptory instruction, but should have been raised by an objection to the testimony, we call attention of the court to the fact that the objection could be made for the first time in this court. The objection was vital to the appellees' cause of action. The appellees had no cause of action unless they could show trespass committed in Jefferson county, Mississippi. Having failed to do so, no cause of action was made out, and the objection may be made at any time. Speaking upon that question, this court, in the case of Wilson v. R. R. Co., 77 Miss. 714, used the following language:

"Ordinarily, it is true that objections not specifically made below cannot here be relied on. The reason of that rule, which gives it its life, is that the opposite party may have opportunity to meet and obviate the objection. But where the court can see, as to the plaintiff, that he has no cause of action on which a judgment can be legally pronounced, or, as to the defendant that he has no defense which the law can allow to stand, there is presented in both cases equally a case wherein it is not legally possible to obviate the fatal fault if opportunity to do so had been given; and this court must in such case act upon the fatal infirmity presented by the record."

The same rule was announced by this court in the case of Gabbot v. Wallace, 66 Miss. 618. The rule is especially applicable here, because if the objection had been obviated by the appellees, or the appellees had sought to amend the declaration and bill of particulars by alleging that the trespass occurred in Franklin county, Mississippi, in order to make the pleadings conform to the proof in the case, the amendment would have been without advantage to the appellees, because, as we have hereinbefore pointed out, the circuit court of Jefferson county, Mississippi, had no jurisdiction, and could acquire none of a trespass committed wholly in Franklin county, Mississippi.

Point II. The appellees offered no evidence showing or tending to show any trespass in Jefferson county, Mississippi. The only trespass on the part of the appellants sought to be shown by the appellees was committed, if at all, in Franklin county, Mississippi. The circuit court of Jefferson county, Mississippi, was without jurisdiction to try such cause of action even if properly established. Section 486 of Hemingway's Code of the State of Mississippi; Wilson v. Rodewald, 49 Miss. 506, 10 S. & M. 159; 3 Ib., 529; 4 Ib. 538, Ib. 549; 12 Ib. 449; 41 Miss. 668; Wessenger v. Masur, 75 Miss. 64; Wilkinson v. Jenkins, 77 Miss. 603; Wilson v. Rodewaul, 49 Miss. ; Greer v. Greighton, 10 S. & M. 159; Switzer v. Bennett, 49 Miss. 209; Archbald v. R. R. Co., 66 Miss. 424; Garrett v. Dabney, 27 Miss. 335; Shotwell v. Covington, 69 Miss. 735; Davis v. Harburg, 59 Miss. 362; Weatherby v. Roots, 72 Miss. 355; Hay v. Hay, 93 Miss. 732, 25 L. R. A. (N. S.) 182; White v. I. C. R. R. Co., 55 So. 593.

We respectfully submit that the judgment should be reversed and the case should be dismissed. Or if mistaken in this, the case should be reversed and transferred to Franklin county, or if mistaken in this, the case should reversed and remanded for a new trial.

Truly & Truly, for appellee.

Points I and II, are based upon an alleged lack of jurisdiction in the circuit court of Jefferson county to try the cause submitted. This claimed lack of jurisdiction is founded upon the erroneous assumption that the suit herein reviewed is a local action within the purview of our statute; that the wrongs and trespasses which form the basis of the suit were committed, in Franklin county and that the circuit court of Franklin county alone had jurisdiction.

The answers to this argument are manifold. (1) No such ground of objection was made in the court below. Consequently it cannot now be presented for the first time in this court. Y. & M. V. R. R. v. Wallace, 90 Miss. 609; Fox v. Baggett, 101 Miss. 519; Mississippi Central Railroad Company v. Pillows, 101 Miss. 529. The testimony as to the wrongs and trespasses wilfully and repeatedly, perpetrated by the appellants was admitted without objection. The contest was over what had occurred; what wrongs had been inflicted; and not where they were committed. Having fought the case out on one theory in the court below appellants must now adhere thereto. Anderson v. Maxwell, 94 Miss. 138.

If there had been a variance between the bill of particulars and the proof (which the map shows there was not) objection should have been made in the court below. There was no such variance. There was no such objection.

If the proof had shown that the wrongs and trespasses complained of, and which form the basis of the claim for punitive damages, in point of fact had all occurred in Franklin county and this fact had been material, due objection should have been made in some way in the court below. The proof did not show this. The point was not material even if it had existed, and no objection was made. Consequently the point cannot now be raised in this court.

(2) We refer the court to paragraph 2, of rule six of this court and show that the questions attempted to be raised by appellants' brief in this regard are not included in the assignment of error filed by them herein. We show that the theory now advanced was not only not presented to the court below, but was not even thought of until after the assignment of error in this case had been filed.

(3) We further submit that this is not a local action within the meaning of section 486, Hemingway's Code. This is a suit brought against several named individuals, some of whom compose a mercantile partnership. All of them residents of the county in which the suit was brought and in which the larger portion, if not all, of the land in question is situated. This is not a suit for injuries to land caused by trespass thereon, but is an action in tort and to recover the value of certain personal property of appellees wrongfully taken and converted by appellants to their own use. The ground of the suit is, first the value of certain property belonging to appellees and taken by appellants and wrongfully converted, and, secondly, damages for wilful and oppressive wrongs inflicted upon the appellees in their rights. Not injuries to land, but a wilful and oppressive violation of their own personal rights. The fact of the repeated trespasses committed on the lands of the appellees is simply the evidence of the wrong complained of. See Bonelli v. Bowen, 11 So. 791. Appellees are not suing for damages inflicted upon their real estate, but are suing for punitive damages because of the utter disregard of their property and personal rights. Consequently such suit is transitory and could only be brought in the county where the defendants reside.

(4) The points are not well taken as a matter of fact. The proof in this case, the bill of particulars, the map in evidence, the testimony of Reuben Smith, of Emmet Stampley, and of Victor Martin shows that the trespasses were committed by the appellants on lands lying either wholly in Jefferson county or on lands situated both in Franklin and Jefferson counties.

(5) The point is not well taken as a matter of law. The language of section 486, Hemingway's Code expressly provides "but if the land be in two or more counties and the defendant resides in either of them, the case shall be brought in the county of his residence." According to the contention of the appellees, supported by the testimony of Stampley, Martin and others, the land is situate entirely in Jefferson county, but conceding the contention of appellants that the land was situate partly in Jefferson and partly in Franklin county this of itself brings the case within the exception cited in section 486, and demonstrates that the suit was properly brought in the county of the residence of the appellees. It must further be remembered that according to the testimony there was no...