State ex rel. Gully v. Massachusetts Bonding & Ins. Co.

• Decision Date: 09 October 1939
• Docket Number: 33715
• Citation: 187 Miss. 66,191 So. 285
• Parties: STATE ex rel. GULLY, STATE TAX COLLECTOR, v. MASSACHUSETTS BONDING & INS. CO. et al
• Court: Mississippi Supreme Court

191 So. 285

187 Miss. 66

STATE ex rel. GULLY, STATE TAX COLLECTOR, v. MASSACHUSETTS BONDING & INS. CO. et al

No. 33715

Supreme Court of Mississippi, Division A

October 9, 1939

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit in equity by the State of Mississippi, on the relation of J. B Gully, State Tax Collector, against Massachusetts Bonding &amp Insurance Company, surety on the official bond of A. R Hutchins, deceased chancery clerk of Humphreys County, and others, to recover money alleged to have belonged to the county and to have been misappropriated. Motions of the defendant to dismiss the suit for want of jurisdiction were sustained and plaintiff appeals. Affirmed.

Affirmed.

May & Byrd and W. E. Gore, all of Jackson, for appellant.

The appellant relies upon the provisions of the Chancery Court venue statute (Sec. 363, Code 1930) in contending that the decree dismissing the suit "for want of proper venue and jurisdiction, " is erroneous and should be reversed and the cause remanded for trial in the jurisdiction where suit was filed and a necessary defendant joined was found and served with process.

Griffith's Chancery Practice, Chap. 6, Secs. 151 and 155; Brashier v. O'Connor & Sons, 180 So. 67.

Venue of this action must be controlled by the concluding clause of Section 363, Code of 1930, here quoted: "all cases not otherwise provided may be brought in the Chancery Court of any county where the defendant, or any necessary party defendant, may reside or be found." All the conditions provided by the statute have been met and satisfied in this proceeding.

The state has required foreign corporations doing business in Mississippi to establish their residence for the service of process and to designate an agent upon whom process may be served. Complying with that requirement, the defendant surety company here sued designated a resident citizen of the First District of Hinds County as agent upon whom process could be served in a suit against the corporation. In contemplation of law, therefore, within the meaning of our venue statute here involved, this defendant has been found in Hinds County and has been sued in Hinds County, and the other defendants moving to dismiss because not sued in their county have no legal cause to complain.

In the case of Moyse v. Cohn, 76 Miss. 590, 25 So. 169, the court held that a bill to foreclose a deed of trust may be filed in the chancery court where the trustee resides, although the property and all other defendants reside elsewhere.

Myers v. Martinez, 95 Miss. 104, 48 So. 291.

In Cutrer v. Tennessee, 98 Miss. 841, 54 So. 434, the court held that suit on bond of executor appointed in Tennessee to pay over money converted in Mississippi to be administered in accordance with the laws of Tennessee was maintainable in Mississippi.

If a necessary defendant has been found in Hinds County, the suit is maintainable in Hinds County.

The suggestion that State Treasurer James and State Auditor Craig are not proper or necessary parties, based upon the decision in the case of Gully v. City of Biloxi, 177 Miss. 782, 171 So. 698, is untenable, for the reason that under the allegations of the bill herein there is statutory authority vested in these officers to pay the money under their control to the legal representative of the deceased officer--the Chancery Clerk. (Sec. 6042, Code 1930.) Whereas, in the City of Biloxi case, the court pointed out that there was no statute which would authorize the Auditor or Treasurer to pay out of the State Treasury the money sought to be recovered as an illegal payment by the principal defendant Gully into the general fund of the treasury.

If the theory advanced by the appellees would require this suit to be filed in Humphreys County, no effect could be given to the express provision of the statute fixing the venue of equity suits.

The Bonding Company, a foreign corporation, cannot complain that it has been sued in the wrong court, because the statute required it to designate a resident agent for the service of process, and service upon such agent would authorize suit to be prosecuted against it in any county in Mississippi.

If the State Treasurer and State Auditor are not necessary parties defendant, still the Bonding Company is admittedly a necessary party defendant, and admittedly found in the county where suit was brought; hence, Hinds County Chancery Court should take jurisdiction and try said cause.

Murphy & Wadlington and V. B. Montgomery, all of Belzoni, Percy & Farish and D. S. Strauss, all of Greenville, Johnson & Allen, of Indianola, and Butler & Snow, of Jackson, for appellee.

The only proper venue for this suit is the Chancery Court of Humphreys County, Mississippi.

Sec. 363, Miss. Code 1930; Griffith's Chancery Practice, Sec. 151.

Mr. Justice Griffith, in his most excellent work on Mississippi Chancery Practice, has commented at some length upon the Mississippi decisions construing this equity venue statute. His comments show that in a suit in personam the venue lies and the suit, "must be filed in the county where one of the necessary parties defendant resides."

Griffith's Chancery Practice, Secs. 155 and 536.

There are two nominal defendants, Carl N. Craig, State Auditor, and Newton James, State Treasurer, whom complainant has arbitrarily undertaken to make parties defendant. However, these two parties are neither necessary nor proper parties.

There is no authority to sue the state treasurer or the state auditor for the disbursement of funds in the state treasury. This has been recently and expressly held by our supreme court.

Gully, State Tax Collector, v. City of Biloxi, 177 Miss. 782, 171 So. 698; City of Biloxi v. Gully, 182 Miss. 723, 180 So. 821.

We submit that this suit has not been brought in the county where a necessary party defendant resides. Hence, there is and can be no jurisdiction of this cause in Hinds County under the equity venue statute.

We find that venue has been retained in two cases involving several defendants and where the only defendant found in the county where suit was brought was a corporation. But both of these cases are circuit court cases.

Dean v. Brannon, 139 Miss. 312, 104 So. 173; Tucker v. Gurley, 176. Miss. 708, 170 So. 230.

We have not been able to find a single case where venue has been maintained in a personal action in the chancery court where none of the defendants resided in the county where the suit was brought and where venue depended entirely on finding one non-resident corporation defendant in the county where suit was brought.

Furthermore, the court will not seize upon a strained construction of the statute as a basis for the conferment of venue. The right of proper venue is a valuable right to the defendant.

67 C. J., pp. 97 and 98, Sec. 155.

We submit, that under the general provisions of ...