Mississippi Cent. R. Co. v. Calhoun
| Decision Date | 19 October 1925 |
| Docket Number | 25098 |
| Court | Mississippi Supreme Court |
| Parties | MISSISSIPPI CENT. R. CO. v. CALHOUN. [*] |
1 CORPORATIONS. Service of process on former agent of domestic corporation, who is not at time of service agent, field not to confer jurisdiction of person in absence of appearance. Service of process upon a former agent, of a domestic corporation, who is not at the time of the service its agent is void, and does not confer jurisdiction of the person in the absence of an appearance.
2. JUSTICES OF THE PEACE. After entry by justice of peace of judgment on void process without appearance, defendant may appeal and plead to jurisdiction of court without entering appearance. Where a justice of the peace rendered a judgment upon a void process where there was no appearance, a defendant may there-after appeal and plead to the jurisdiction of the court without entering appearance. Heggie v. Stone, 70 Miss. 39, 12 So. 253, cited.
APPEAL from circuit court of Perry county, HON. W. L. CRANFORD Judge.
Action by F. A. Calhoun against the Mississippi Central Railroad Company. From a judgment for plaintiff by a justice of the peace, defendant appealed to the circuit court, and from its judgment for plaintiff in a trial de novo, defendant appeals. Reversed and dismissed.
Judgment reversed and cause dismissed.
T. Brady and Hannah & Simrall, for appellant.
The error of the trial court in overruling the appellant's motion to dismiss the case for lack of jurisdiction is so patent that only a statement of facts is necessary to demonstrate it. By section 708, Code of 1906 (section 487, Hemingway's Code), it is provided that, "Actions against any railroad . . . corporation . . . may be brought in any court in which any part of such railroad . . . line may be." By this section of the Code, the bringing of a suit against a railroad corporation is expressly restricted to a court in the jurisdiction of which some part of its line of railroad may be. It conclusively appears from the facts in this case that on the date this suit was filed no part of the appellant's line of railroad lay within the jurisdiction of the justice of the peace in whose court the suit was brought. Therefore, the justice of the peace may have been without jurisdiction of the person of the appellant railroad company. The appellant made timely objections to the jurisdiction of the court by making its motion to dismiss the case in the circuit court. It is an elementary principle that the circuit court on appeal has no other or further jurisdiction than the justice of the peace court had, and since the justice of the peace court had no jurisdiction of this case, the circuit court was likewise without jurisdiction.
The rule was laid down by our supreme court in 1876 in Cain v. Simpson, 53 Miss. 521, that where the justice of the peace court had no jurisdiction of a case, and motion was made in the circuit court on appeal to dismiss the case for lack of jurisdiction of the justice of the peace, that the circuit court was bound to dismiss the case, and could not take jurisdiction of the case nor remand it to the court of a justice of the peace having jurisdiction.
Section 3932, Code of 1906 (section 2939, Hemingway's Code), provides upon what officers, agents, employees or servants of a railroad company the process of the courts of this state may be executed. It affirmatively appears from the record in this case that the H. C. Hughes upon whom the process was executed was not any such officer, agent, employee or servant of the appellant upon whom the process in this case could be legally executed. The court was therefore, without jurisdiction to try this case because the defendant had not been properly brought into court. Timely objection was made to this by the appellant's motion to dismiss the case. The motion should have been sustained on this ground if no other.
A. T. L. Watkins and H. D. Young, for appellee.
We would not deny or challenge the law as announced by the learned counsel for appellant, if it had been supported by the facts. It will be discovered that appellant had what is termed "scrambling possession" at the time suit was filed. Section 4094, Hemingway's Code, provides for such cases, and, besides, there was no objection to the service of the process in the justice of the peace court, but they promptly appealed to circuit court. The service shows that H. V. Hughes was their agent at the time of the injury to the animal, and it is not now denied, nor was it ever denied; neither have they denied receipt of the copy to this good hour. Counsel for appellant were present at the trial in justice court and should have there interposed their special appearance to test the jurisdiction. If they had come into circuit court and plead that they had no opportunity to interpose such special plea in justice court, it would have been different, but the date of judgment in justice court and appeal show their presence and notice.
T. Brady, Jr., and Hannah & Simrall, in reply for appellant.
Counsel for the appellee state in their brief that the appellant had, at the time this suit was filed, what is denominated "a scrambling possession" of the line of railroad in question. We are not familiar with this term of "scrambling possession." The agreed statement of facts on the appellant's motion to dismiss this case shows conclusively that the appellant did not own and was not operating the line of railroad here in question at the time suit was filed, and that, therefore, it did not have any "possession" of this line of railroad.
Counsel for appellee next say that section 920, Code of 1906 (section 4094, Hemingway's Code), gave the justice of the peace court jurisdiction of this case, and also that the process in this case was properly served in accordance with this section of the Code. An inspection of this section of the Code discloses that it deals with suits against foreign corporations only, while this suit is...
To continue reading
Request your trial
-
Arnett v. Carol C. & Fred R. Smith, Inc.
...he waived, individually, and for the corporation, his and its territorial jurisdiction?" Upon the first proposition, as stated above, no Mississippi case is cited by counsel, and we have found none which is of aid in reaching a conclusion; but, in other jurisdictions, there is a great array......
-
Alabama Power Co. v. Jackson
...v. Williams, 162 Miss. 258, 139 So. 606; Amett v. Smith, 165 Miss. 53, 145 So. 638; Miss. Cent. R. R. Co. v. Calhoun, 140. Miss. 289, 105 So. 519; Grenada Bank v. Petty, 174 Miss. 415, 164 So. First Natl. Bank v. Cottonseed Products Corp., 157 So. 349, 171 Miss. 282. Jas. A. Cunningham, of ......
-
Fireman's Fund Ins. Co. v. Cole
...a waiver of a defendant's right to plead to the jurisdiction of the court. Heggie v. Stone, 70 Miss. 39, 41, 12 So. 253; Miss. Central R. R. Co. v. Calhoun, supra; Turner Williams, 162 Miss. 258, 139 So. 606; Arnett v. Smith, 165 Miss. 53, 145 So. 638. Reversed, and cause dismissed. ...
-
Nicholson v. Gulf, Mobile & Northern R. Co.
... ... state at the time he was found in Tishomingo county, ... Mississippi, made no difference whatever, because the above ... statute in providing venue for transitory ... & Fred R. Smith, Inc., 165 Miss. 53, 145 So ... 638; Mississippi Central Railroad Co. v. Calhoun, ... 140 Miss. 289, 105 So. 519; Grenada Bank v. Petty, ... 174 Miss. 415, 164 So. 316. The ... ...