Plummer-Lewis Co. v. Francher

• Decision Date: 15 May 1916
• Docket Number: 17360
• Citation: 111 Miss. 656,71 So. 907
• Court: Mississippi Supreme Court
• Parties: PLUMMER-LEWIS CO. v. FRANCHER

71 So. 907

111 Miss. 656

PLUMMER-LEWIS CO. v. FRANCHER

No. 17360

Supreme Court of Mississippi

May 15, 1916

APPEAL from the circuit court of Attala county, HON. J. A. TEAD Judge.

Suit by C. C. Francher against the Plummer-Lewis Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and dismissed.

Watkins & Watkins, for appellant.

Flowers Brown, Chambers & Cooper, for appellee.

OPINION

COOK P. J.

C. C. Francher filed his declaration in the circuit court of Attala county declaring upon an alleged breach of contract, and process was served upon an alleged agent of appellant, a domestic corporation organized under the laws of this state, which agent was found in Attala county.

The defendant corporation appeared and filed a plea challenging the jurisdiction of the circuit court of Attala county. The plea averred that the defendant was a domestic corporation, and that it was domiciled at Jackson, Hinds county, and also that the process was not served on an agent of the defendant qualified to receive process. Issue was joined on these pleas, and the issue was fought out on the facts. The uncontradicted facts sustained the averment of the plea that defendant was a domestic corporation, and that its domicile was fixed at Jackson, Hinds county, by its charter. The trial court peremptorily instructed the jury to find for the plaintiff on this issue. The verdict of the jury was rendered accordingly.

Several questions are presented by the briefs in this case, but we have elected to confine our opinion to a single point determinative of this case. The question is: Did the circuit court of Attala county have jurisdiction to try a case instituted in that county against a domestic corporation domiciled at Jackson, Hinds county, the corporation defendant being a trading corporation engaged in the buying and selling of cotton, and exercising its franchise through an agent located in the county of the venue of the action?

The venue of civil actions generally is fixed by section 707, Code 1906, "in the county in which the defendant or any of them may be found, except where otherwise provided, and except actions of ejectment and actions of trespass on land." Sections 708, 709, 710, and 711 provide for the venue of actions in cases that are described in section 707 by the phrase "except where otherwise provided." The defendant in this case does not come within the excepted class of defendants mentioned in sections 708, 709, 710, and 711, nor is this, an ejectment suit, or action of trespass on land.

The question is, then: Was the defendant found, or could the defendant be found in Attala county, when its domicile was fixed by law in Hinds county? If it can be said that the corporation is "a citizen resident in this state," and that it has a "household and residence," there would be but little difficulty in arriving at a satisfactory solution of the problem presented by this appeal by sustaining a motion for a change of venue, but we believe the right of change of venue is not given corporations.

We will go a step further to see if the chapter on "Process" throws any light on this problem. Section 3927 prescribes the forms for the returns which the sheriff must make on process directed to him, and this section prescribes: (1) Form for personal service; (2) form where service is had on some other person than the defendant, and manifestly this form is for natural persons, if it be taken literally, and the same is true if we read literally from 3. So far, our statutes do not in terms provide for the venue of actions against corporations of the class to which the defendant in this case belongs, nor a form of service in cases like the present one.

Section 3932 is the statute that points the way for serving process on all domestic corporations. The first clause is the general clause, and provides for personal service on the officers named "or agent or upon any one of the directors of such corporation." This clause refers to all corporations of whatever kind or description. The second clause refers to sleeping car companies alone, and the third clause is confined to steamboat companies. Then follows a sentence which refers to cases where none of the officers and agents mentioned in the preceding part of the section can be found, and provides that in this event "then it shall be sufficient to post a true copy of the process on the door of the office or principal place of business of the corporation."

May we not say just here that thus far section 3932 refers to and contemplates that the action, in the first instance, was begun in the county wherein was located "the office or principal place of business of the corporation" made defendant? We think so. It is clear that the directions of the statute are intended for the guidance of the officer to whom the process is directed, and ordinarily, of course, the process from the circuit court is directed to the sheriff of the county in which the suit has been filed. The succeeding part of this section of the Code, we believe, makes it clear that the first part of the section refers to actions begun in the county where the office or principal place of business of the corporation sued is located. We quote that part of section 3932 just referred to, the same being the two concluding sentences of the section, viz.:

"In suits against railroads, sleeping car, telegraph, telephone, express, steamboat, and insurance companies or corporations, or in suits against a receiver or receivers in charge of the property of any such companies or corporations, the process may be served on any agent of the defendant or sent to any county in which the office or principal place of business may be located, and there served as herein directed and authorized; or may be served on any one of the foregoing officers of such corporation or company, and upon the...