Stanley v. Cruise

• Decision Date: 25 February 1924
• Docket Number: 23759
• Citation: 134 Miss. 542,99 So. 376
• Court: Mississippi Supreme Court
• Parties: STANLEY et al. v. CRUISE et al

99 So. 376

134 Miss. 542

STANLEY et al. v. CRUISE et al

No. 23759

Supreme Court of Mississippi

February 25, 1924

Division B

Suggestion of Error Overruled March 24, 1924.

APPEAL from chancery court of Jasper county, First District, HON. G C. TANN, Chancellor.

Suit by T. K. Stanley and others against Dib Cruise and others. From a decree dissolving a temporary injunction, plaintiffs appeal. Affirmed and remanded.

Affirmed and remanded.

D. W Heidelberg, for appellants.

We contend that it is immaterial whether the defendant resided or the property was located in the district in which the suit was brought or not. The defendant, in the suits brought before the justice of the peace, having appeared, according to the uncontradicted testimony, and made no objection to the jurisdiction of the court, cannot now be heard to say that the justice of the peace was without jurisdiction. An action of replevin can be brought either in the district where the property is located or in the district in which the defendant resides; in other words, it is a transitory action, and if he had intended to object to the jurisdiction of the court it was his duty to appear and object, and having failed to do so he is now estopped from doing so and the judgments against him are valid.

The case of Catlett v. Drummond, 113 Miss. 450, is conclusive that the, judgments before the justice of the peace were valid. Notwithstanding section 522, Code 1871, providing that, with certain exceptions, a defendant shall be sued in the county of his residence, the supreme court in the case of Christian v. O'Neal et al., 46 Miss. 669, decided that if a freeholder or householder be sued out of the county of his residence and fail to apply for a transfer of the case, the circuit court in which the suit is brought may properly render judgment. The law governing this subject is clearly laid down in 40 Cyc. 110 and 111, which is cited with approval, in the case of Catlett v. Drummond, supra. See also 22 Encl. of Pleading and Practice, 815.

Section 4216, Code 1906, providing that actions of replevin in the justice's court may be brought in the district in which the defendant or the property sued for may be found, is entitled--"Venue," showing that it is not dealing with the question of jurisdiction, but of venue, and under the authorities above cited, the venue may be waived, and is waived when not raised at the proper time. On this subject see: 2 Words and Phrases (Second Series), 1278, 1280; 4 Words and Phrases (First Series), 3886, 3887.

The vice in the argument of the attorney for appellees is an erroneous conception of the meaning of the word "subject-matter." We admit that if the justice of the peace had no jurisdiction of the subject-matter that a failure of Dib Cruse to raise the question of jurisdiction could not confer jurisdiction. Counsel for appellees is laboring under the misapprehension that by subject-matter is meant the particular case arising before the justice of the peace, or the particular suits brought before him, instead of the general class to which those particular suits belong. That he is in error in this contention is shown by the authorities above cited.

Robert L. Bullard, for appellees.

Writs of replevin were issued by a justice of the peace in District Five, returnable before himself, for the seizure of property in the possession of a defendant outside of District Five, both the defendant and the property being outside of his district. That is the fact upon which the case will here be decided.

I contend that since both the property and the defendant were in District Two the actions could only be instituted there. This court has already held, as will be shown, that unless the action is "instituted" at the place provided by law the writ is void. This is governed by section 4214 and 4216, Code of 1906.

Opposing counsel admits that if the justice of the peace was without jurisdiction of the subject-matter of the action the appearance of the defendant could not confer it. In fact the appearance of the defendant, even his consent to a trial, could not confer any more jurisdiction on the justice than he would have by personally served process.

Counsel contends also that the action is transitory, and may be tried anywhere, unless the defendant claims his privilege of being sued at home. This is contrary to the common law and the vast weight of authority in this country, as well as to the statute already quoted. Replevin at common law was local. 40 Cyc. 21.

This court has distinctly recognized that the action of replevin is a local action in rem and must be brought where the property is located, or where the defendant resides, in the case of Turner v. Lilly, 56 Miss. 578. See also Ellison v. Lewis, 57 Miss. 588; Cain v. Simpson, 53 Miss. 521. That the action is still a local action in rem is placed entirely beyond question by the case of Richardson v. Davis, 59 Miss. 15.

Counsel seems to find some significance in the fact that the word "venue" is used in the title to the section of the Code designating where the action of replevin shall be brought. Venue, he says, is a personal privilege that may be waived. Sometimes this is true, sometimes it is not. It is said that there is perhaps no word...