Nicholson v. Gulf, Mobile & Northern R. Co.

• Decision Date: 08 February 1937
• Docket Number: 32536
• Citation: 177 Miss. 844,172 So. 306
• Parties: NICHOLSON v. GULF, MOBILE & NORTHERN R. CO
• Court: Mississippi Supreme Court

172 So. 306

177 Miss. 844

NICHOLSON v. GULF, MOBILE & NORTHERN R. CO

No. 32536

Supreme Court of Mississippi

February 8, 1937

Division A

1 APPEARANCE.

Defendant in personal injury action held not to have waived jurisdiction of court by plea in abatement challenging jurisdiction.

2 CORPORATIONS.

Venue statute held not to confer right to change of venue on corporation (Code 1930. sec. 495).

3 PROCESS.

Generally, court will not take jurisdiction based on service of process on defendant who was brought within reach of process wrongfully or fraudulently, or by deceit, or in any other improper device chargeable to plaintiff.

4. VENUE.

Plaintiff should not be permitted to fix venue by agreement with alleged joint tortfeasor when so to do will destroy statutory right of joint tort-feasor as to venue of cause against him (Code 1930, secs. 495, 496).

5. PROCESS.

Court should refuse to exercise jurisdiction obtained by agreement with one of two joint tort-feasors, since result thereof constitutes fraud on jurisdiction of court, and act becomes fraudulent in its nature, where purpose and result is to defeat right guaranteed by law, notwithstanding that lawful act does not become unlawful merely because it may be done by agreement between parties (Code 1930, secs. 495, 496).

6. PROCESS.

Action against railroad company and truck driver for injuries to guest in truck received in collision between truck and train held properly dismissed, as against railroad company, where truck driver, pursuant to agreement with guest, submitted to service of process in county in which railroad company maintained no railroad line, office, or agent, for purpose of conferring jurisdiction on court of that county against railroad company (Code 1930, secs. 495, 496).

HON. THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Tishomingo county HON. THOS. H. JOHNSTON, Judge.

Action by W. L. Nicholson against Gulf, Mobile & Northern Railroad Company and another. From a judgment dismissing the cause as to the named defendant, the plaintiff appeals. Affirmed.

Affirmed.

Jas. A. Cunningham, of Booneville, for appellant.

Section 495 of the Annotated Code of 1930 provides that, "Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found . . .;" and we know of no exception to the above quoted pronouncement that would apply to a transitory action such as the one here involved.

The fact that joint defendant Coleman was a nonresident of this state at the time he was found in Tishomingo county, Mississippi, made no difference whatever, because the above statute in providing venue for transitory actions hinges the question upon where the defendant or some of them "are found" and not on the question of whether he is a citizen of the state or a non-resident, and neither is it determined by the question of whether he is a pauper or millionaire.

Gulf Refining Co. v. Moody, 160 So. 561.

Defendants cannot question a plaintiff's motive in doing what the law gives him a right to do, and neither can one joint tort-feasor question another joint tortfeasor's right to do whatever he sees proper to do within the law; and that in this case plaintiff had a right under the law to sue these joint tort-feasor's jointly and severally in one declaration and his motive is not open to question.

I. C. R. R. Co. v. Harris, 38 So. 225; Gulf Refining Co. v. Moody, 160 So. 559; Chicago, R. I. & P. R. R. Co. v. Dowell, 57 L.Ed. 1090.

In this jurisdiction where all forms are abolished and the substance is looked to the appearance made by the defendant railroad company to vacate the process was in effect to quash the process and was all appearance in court under section 2999 of the Annotated Code of 1930.

McCoy v. Watson, 122 So. 368; Arnett v. Smith, 142 So. 478; Grenada Bank v. Petty, 164 So. 317.

The defendant railroad company being personally in court and claiming to have been sued in the wrong county had its sole remedy provided under section 495 of the Annotated Code of 1930, and that was a motion for a change of venue to the county of its residence.

Plummer-Louis v. Frencher, 71 So. 907.

The participation in a wrong sacrifices or rather makes it violative of public policy for such joint tort-feasors to have any claims, strings, control, or direction one over the other.

13 C. J. 828, sec. 18; Thomas v. Rounds, 137 So. 894.

Fred B. Smith, of Ripley, for appellee.

By a motion to quash, whether such motion is sustained or overruled, the defendant waives any question of jurisdiction over his person; but he does not waive jurisdiction over the subject matter or the venue of action.

Arnett v. Smith, 142 So. 478; Batson & Hatten Lbr. Co. v. McDowell, 159 Miss. 322, 131 So. 880.

In the case of Turner v. Williams, 162 Miss. 258, 39 So. 608, the court held that a defendant did not waive a defect of territorial jurisdiction by filing a plea in abatement or other plea to question the jurisdiction of the court. z

Arnett v. Smith, 145 So. 641; First National Bank of St. Louis v. Miss. Cottonseed Products Co., 157 So. 349; Sandford v. Dixie Construction Co., 128 So. 887; Natchez Coca Cola Co. v. Watson, 133 So. 678.

Section 495 of the Annotated Code of 1930 provides that actions against a domestic corporation shall be commenced in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue. Section 496 of the Code provides that actions against any railroad corporation shall be brought in any county in which any part of said railroad may be. Our court in the case of Trolio v. Nichols, 133 So. 207, 160 So. 611, in holding that the allegations of a declaration are not conclusive on a question of proper venue, and that territorial jurisdiction may not be fraudulently conferred, said: "The right of a citizen to be sued in the county of his residence is a valuable right; it is a right of importance to him--it is not a technical right. Where an action is brought in a county where any one of several defendants resides, the county must be one where a material defendant resides; he must be a proper party --he must not be joined for the sole purpose of giving the court of that county jurisdiction. If he is not a material defendant, and is joined as such by the plaintiff for the fraudulent purpose of giving the court jurisdiction, the cause will be dismissed or transferred to the proper county. 40 Cyc. 97 (and cases in the notes); 15 C. J. 800, and case notes; Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874. This is too valuable a right to permit the allegations of the plaintiff's declaration to be conclusive. Such a rule would furnish a convenient means for the plaintiff to fraudulently fix the venue of the action to suit his purposes."

15 C. J. 800, 809; Chubuck v. Cleveland, 137 Minn. 466, 5 A. S. R. 865; Woolard v. Zehr, 215 Ill. 147, 74 N.E. 107; Sessoms Grocery Co. v. International Sugar Feed Co., 66 So. 479; Donselaar v. Jones, 195 Iowa 1081, 192 N.W. 22; The Underwriter, 6 F.2d 937; Perry v. Nowlin & Maris, 131 So. 253.

As showing the general policy of the law, and the courts in these matters, we find that contracts attempting to fix the venue of suits, or to oust the jurisdicion of courts have been generally held to be contrary to public policy.

13 C. J. 455; 67 C. J. 23; Brotherhood of Railroad Trainmen v. Agnew, 155 So. 206; Broom v. Board of Supervisors, 158 So. 344; Fuller v. State, 100 Miss. 817.

We cannot believe that it is the policy of the courts of Mississippi to set a precedent by which a plaintiff seeking to bring an action at law can connive and agree with a friendly and impoverished defendant to go into a jurisdiction that suits the ends of the plaintiff, for the purpose of receiving process, and thereby acquiring territorial jurisdiction of another defendant, who otherwise could not be forced to litigate in that jurisdiction. Such a precedent would virtually nullify the venue statutes in any case where a friendly or insolvent joint defendant could be joined, as always sufficient inducements could be offered to get them into the jurisdiction where the plaintiff preferred to litigate. To open our courts to such tricky practices would bring them into disrepute.

Argued orally by Jas. A. Cunningham, for appellant, and by Fred B. Smith, for appellee.

OPINION

Cook, J.

Appellant was seriously injured at Jackson, Tenn., in a collision between a truck on which he was riding, and a freight train operated over the tracks of the Gulf, Mobile & Northern Railroad Company. Paul Coleman, the driver of the truck, was a resident of the city of Jackson, in Madison county, Tenn., and, at the time of his injury, the appellant was temporarily a resident of the city of Jackson, Tenn., but shortly thereafter he returned to his former home at Booneville, in Prentiss county, Miss.

After the appellant had re-established his residence in Prentiss county, Miss., he filed this suit in Tishomingo county, Miss., against the Gulf, Mobile & Northern Railroad Company and Paul Coleman, the driver of the truck on which he was riding when he was injured, seeking to recover damages for personal injuries alleged to have been caused by the concurring negligence of the said defendants. Personal service of summons on the defendant Coleman in Tishomingo county was secured under circumstances hereinafter stated.

Pleas to the jurisdiction of the Tishomingo county court were filed by each of the defendants. The plea of the defendant Coleman alleged, in substance, that he was not legally found and served with process in Tishomingo county; that he had never resided in the state of Mississippi,...