State ex rel. Howie v. Benson

• Decision Date: 15 February 1915
• Docket Number: 17753
• Citation: 108 Miss. 779,67 So. 214
• Court: Mississippi Supreme Court
• Parties: STATE EX REL. HOWIE, DISTRICT ATTORNEY v. BENSON

67 So. 214

108 Miss. 779

STATE EX REL. HOWIE, DISTRICT ATTORNEY v. BENSON

No. 17753

Supreme Court of Mississippi

February 15, 1915

APPEAL from the circuit court of Hinds county. HON. W. A. HENRY Judge.

Mandamus by the state, on relation of J. H. Howie, district attorney against R. L. Benson. Judgment for respondent and the state appeals.

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

Reversed and remanded.

Ross A Collins, Attorney-General, and Howie & Howie, Green & Green, Butch & Stricker and William Hemingway, City Attorney, all for the state.

Wells, May & Sanders, for appellee.

OPINION

Cook, J.

The Capital Light & Power Company, a corporation with power to operate an electric lighting plant in Jack-

The Capital Light & Power Company, a corporation with power to operate an electric lighting plant in Jackson, obtained from the city of Jackson a license, permit, or franchise to operate its plant in the city. This corporation established its plant and for several years operated same and furnished light to the public. The corporation being unable, or failing, to pay its debts was, upon the petition of its unsecured creditors, adjudicated a bankrupt, and all of its assets, including its franchises, were sold by order of the bankrupt court; R. L. Benson becoming the purchaser thereof. This action was begun by a petition filed by the district attorney upon behalf of the state praying for a mandamus to compel R. L. Benson, the owner of the assets and franchises of the corporation, to operate the electric lighting plant and furnish current to the patrons of the corporation. In other words, the petition asks that Benson, the purchaser, be compelled to perform the corporation's duties to the public. To this petition, Mr. Benson filed an answer, in which he seeks to have the action abated because of the alleged lack of jurisdiction of the court to grant the relief prayed for. He avers that he is nonresident--a citizen and resident of the state of Illinois--and, for this reason, the court has no jurisdiction. In addition to this plea to the jurisdiction, special matter in bar of the action is set up in his answer.

It will be observed that Mr. Benson takes the position that the court below has no jurisdiction to try the merits of the case, and yet he submits the merits of the case. to the court in bar of the action. The appellant, in his brief, aptly characterizes this form of pleading as a game of "heads I win, tails you lose." Mr. Benson is willing to have the case decided on its merits provided the decision goes in his favor; but, in the event it goes against him, he submits that the court has no jurisdiction to decide at all.

Section 3234, Code 1906, provides that:

action at law, and the same rules of pleading and proceeding applicable to actions in the circuit court shall be observed in this action."

It would seem that the defendant submitted himself to the jurisdiction of the court when he entered a plea to the merits. He cannot challenge the power of the court to decide and at the same time ask the court to judicially determine the merits in his favor. It is unnecessary to cite authorities in support of this proposition, viz., a plea to the merits waives jurisdiction of the person. Experiments of this kind will not be tolerated. If the rules were otherwise, courts of justice would be converted into moot courts. The state traversed the affirmative averments of the answer. The nonresidence of the defendant is admitted; in fact, the original petition so states. The jurisdiction of the person and the "legal sufficiency of said petition" were submitted to the court. As we understand the record, the parties and the court considered the case as though a general demurrer had been interposed by defendant. Treating the case in this way, the court entered this order, viz.:

"Coming on to be heard, this cause and the same having been fully argued by counsel on both sides, it is considered by the...