Ross v. Ross, 44798

• Decision Date: 11 March 1968
• Docket Number: No. 44798,44798
• Citation: Ross v. Ross, 208 So.2d 194 (Miss. 1968)
• Parties: Johnnie Lee Myers ROSS v. S. L. ROSS.
• Court: Mississippi Supreme Court

Page 194

208 So.2d 194

Johnnie Lee Myers ROSS v.S. L. ROSS.

No. 44798.

Supreme Court of Mississippi.

March 11, 1968.

Everett E. Cook, Phil R. Dunnaway, Gulfport, for appellant.

Appellee not represented by counsel.

JONES, Justice.

Appellant sued appellee for divorce in the Chancery Court of Harrison County.The case was dismissed for lack of territorial jurisdiction.We affirm.

The facts were stipulated.Appellant was a resident citizen of Harrison County, Mississippi, and had been for more than one year next preceding the commencement of the suit.The appellee was a resident citizen of Jefferson Davis County, Mississippi, and had been a resident citizen of that county for more than one year next preceding the commencement of the suit.The separation occurred in Jefferson Davis County.The appellee was not employed in Harrison County, nor did he have even a place of temporary residence in that county; but he was found in the county and served with process.

The power of the courts to grant a divorce does not come from the common law, but is derived solely from the statutes enacted by the legislature of the State.It is a special action.In our Code, the statutes authorizing divorce are set forth in chapter 2 of title 12 headed 'Special Actions.'

Where a statute creates a cause of action which has not previously existed, the conditions upon which such right of action may be pursued are an integral part of the right granted and must be followed.Price v. Price, 202 Miss. 268, 32 So.2d 124(1947).The question here involves Mississippi Code 1942 Annotated section 2738(1956), which provides where the bill for divorce must be filed.The appellant relies on the last sentence of that section:

If the defendant be a resident of this state, the bill shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the complainant be still a resident of such county when the suit is instituted.(Emphasis added.)

The particular words by which it is sought to justify the filing of the suit in Harrison County are 'shall be filed in the county in which such defendant resides or may be found at the time.'It is asserted that the appellee was found in Harrison County and that the action thus complied with the statute above mentioned.

While having no effect or application in divorce actions, the general statutes on venue, including that on change of venue, do manifest the policy of this State that a defendant sued alone in personam shall be sued in the county of his residence.

In a discussion of the general statute on venue in chancery which is section 1274 Mississippi Code 1942 Annotated (1956), the following rule is set forth in Griffith, Mississippi Chancery Practice section 155(2d ed. 1950):

Suits wholly in personam must be filed in the county where one of the necessary partiesdefendant resides.It is true that the statute again uses the permissive word 'may' in that connection, but it is the uniform policy of judicial procedure in our state to bring all litigation in personam to the home of the defendant, and the statute must be construed in the light of that policy.* * * It will be noted also that the statute would upon its face allow a suit in any county where one of the necessary parties may be found.In practical application this has reference only to non-residents of the state, and to those who have no fixed place of residence within the state.The statute holds no such intent as that a resident may be caught on the wing and sued in any county where he may be temporarily found.

See alsoBurgin v. Smith, 163 Miss. 797, 141 So. 760(1932);Brashier v. J. C. O'Connor & Sons, 181 Miss. 872, 180 So. 67(1938).

In Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772(1938), this Court held that the word 'residence,' as used in divorce statutes, is synonymous with 'domicile' and that temporary absence by reason of position did not change the residence of a party.In Price v. Price, 202 Miss. 268, 32 So.2d 124(1947), this Court said that a general statute referring to ordinary rules of venue in the general run of cases brought under substantive rules of the common law or equity is not applicable to a special statute which not only creates a right unknown to the common law, but also...