Trolio v. Nichols

• Decision Date: 23 March 1931
• Docket Number: 29287
• Citation: 132 So. 750,160 Miss. 611
• Court: Mississippi Supreme Court
• Parties: TROLIO v. NICHOLS

132 So. 750

160 Miss. 611

TROLIO v. NICHOLS

No. 29287

Supreme Court of Mississippi

March 23, 1931

(Division B.) ON MOTION TO DISMISS APPEAL.

APPEAL AND ERROR. Plaintiff-appellee could not file cross-assignment of errors against defendant peremptorily discharged; judgment being against other joint and several defendant.

Where a plaintiff sues two parties jointly and severally, and there is a judgment rendered for one of the defendants by peremptory direction, and a judgment rendered against the other defendant, and such other defendant appeals from said judgment, no cross-assignment of errors can be filed against the party discharged in the court below, but the appellee in the direct appeal must, to appeal against the discharged party, file petition and bond within the statutory period to obtain such appeal.

(Division B. March 23, 1931.) [133 So. 207 No. 29287.] ON THE MERITS.

1 VENUE. Allegations of declaration are not conclusive on question of proper venue (Code 1930, section 495). 2. VENUE. Defendant in county of whose residence action was brought against several must be material defendant, proper party, and not joined for sole purpose of conferring jurisdiction (Code 1930, section 495). 3. VENUE. Where defendant in whose county action against several is brought is joined for fraudulent purpose of conferring jurisdiction, cause will be dismissed or transferred (Code 1930, section 495). 4. APPEAL AND ERROR. New trial will not be granted, where verdict is plainly in accordance with testimony of losing party and law and justice, especially where different result is improbable.

Division B

March 9, 1931

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Action by Parker Nichols against John Trolio and another. From the judgment, named defendant appeals. On motion to dismiss cross-appeal. Motion sustained.

Action by Parker Nichols against John Trolio and others. Verdict was directed in favor of the defendants Illinois Central Railroad Company and J. W. Tyler, and, from a judgment in favor of the plaintiff against defendants John Trolio and Buck Gartee they appeal. Affirmed. See, also, 132 So. 750.

Affirmed.

Ray & Spivey, of Canton, for appellant.

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found. If a citizen resident of this state shall be sued in any action, not local, out of the county of his household and residence, the venue shall be changed, on his application, before the jury is empaneled, to the county of his household and residence.

Sec. 495, Code 1930.

The right of a person to be sued at his domicile is not a technical one, but one of importance, and should not be taken away except in strict compliance with law.

40 Cyc. 97.

Under the right to bring an action in the county where any one of several defendants resides, the county must be one in which a material defendant resides.

40 Cyc. 100; Henderson v. Kissam, 8 Tex. 46; Waldrep v. Roquemore et al., 127 S.W. 248; Hawkins v. Brown, 78 Kan. 284, 97 P. 479; Allen v. Miller, 11 Ohio 374; Dunn v. Hazlett, 4 Ohio St. 435; Troy Portable Grain Mill Co. v. Bowen & Co., 7 Iowa 465; Ross v. Battle et al., 117 Ga. 877, 45 S.E. 252; Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874.

Our courts are open to litigants, but those who come into them must come into them in an open fashion. Those who undertake to enter them through a fraud upon the law will be denied admittance.

Sessoms Grocery Co. v. International Sugar Feed Co., 66 So. 479.

Except for the joinder of the railroad company as a defendant, none of the defendants in this case could have been brought to trial in Alcorn county for the reason that none of them were found in said county.

Wolley v. Bowie, 41 Miss. 553.

Even if the pleadings state a cause of action against the resident defendant, no matter how fraudulent or fictitious the statement be, no matter how improper the joinder, the court does not acquire indefeasible jurisdiction of the persons of the other defendants and of the subject matter of the suit and the right of resident citizens of this state, who are the real defendants, to have the venue changed to the county of their residence is not irrevocably destroyed.

It is now well settled law that where suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the non-resident defendant unless the resident co-defendant is liable in the action.

Ross v. Battle, 117 Ga. 877, 45 S.E. 252.

J. A. Cunningham, of Booneville, W. C. Sweat, of Corinth, and Floyd W. Cunningham, of Booneville, for appellee.

To sustain allegations of a fraudulent joinder, the showing must be such as compels the conclusion that the joinder is without right and made in bad faith, and it was not such, unless it was without any reasonable basis.

Chesapeake & O. R. R. Co. v. Cockrell, 58 L.Ed. 544; Chicago, R. I. & P. R. R. Co. v. Whitaker, 60 L.Ed. 360; Chicago, R. I. & P. R. R. Co. v. Schwyhart, 57 L.Ed. 473.

Suing one of the joint tortfeasors on false imprisonment tort appellee had a right to bring in the other joint tortfeasors out of their county.

Pan American Petroleum Corporation v. Pate, 126 So. 480.

Ethridge, P. J., delivered the opinion of the court on motion to dismiss appeal. Anderson, J. delivered the opinion of the court on the merits.

OPINION

Ethridge, P. J.

Nichols sued the appellant, Trolio, and the Illinois Central Railroad Company in the circuit court of Alcorn county. There was a peremptory instruction in favor of the railroad company and a submission to the jury of the issue between Trolio and Nichols, and a judgment rendered against Trolio in favor of Nichols, from which Trolio prosecuted an appeal.

The appellee undertakes to file a cross-assignment of errors against the Illinois Central Railroad Company to the action of the court in granting a peremptory instruction in favor of the railroad company. No petition or bond for appeal was filed by Nichols against the Illinois Central Railroad Company. In such case a cross-appeal cannot be prosecuted. If Nichols desired to appeal from the judgment discharging the railroad, he must do so within the statutory period, give bond, etc., as required by statute. There is no joint judgment here, and in no sense was the railroad company a party to the judgment against Trolio.

The motion to dismiss the cross-appeal and strike from the files is sustained.

ON THE MERITS.

Anderson, J., delivered the opinion of the court on the merits.

The appellee brought this action in the circuit court of Alcorn county against appellants, and also the Illinois Central Railroad Company and J. W. Tyler, to recover damages for an alleged false imprisonment of, and an assault and battery on, appellee while he was so imprisoned, by appellants and their codefendants. A verdict was directed in favor of the defendants the Illinois Central Railroad Company and J. W. Tyler. As to the other defendants, the appellants, there was a verdict and judgment against them in favor of the appellee in the sum of four thousand five hundred dollars. From that judgment appellants prosecute this appeal.

The principal question in the case is one of venue. Appellants were both citizens of the state and residents and householders of Madison county in this state. Their codefendant Tyler was a citizen of the state, and householder and resident of Holmes county in this state. The only other defendant, the Illinois Central Railroad Company, has a line of railroad through Alcorn county, with agents in said county subject to process. The cause of action arose in Madison county. As stated, this action was brought in Alcorn county.

Before the jury was impaneled appellants filed a special plea, setting up those facts, and, further, that there was no real cause against the Illinois Central Railroad Company; that that company had been joined as a defendant in the case for the fraudulent purpose of unlawfully hailing appellants into court in a county other than the county of their residence, and thereby depriving them of their right under the law to be sued in such county. On motion of appellee this plea was stricken out, but later on in the progress of the trial appellants were permitted by the court to file substantially the same plea, and, in addition, a motion setting up the same facts that were embodied in the plea for a change of venue from Alcorn county to Madison county.

Appellants insisted on a separate trial of the venue question raised by the plea and the motion, and offered evidence to sustain the allegations of the plea and motion. The court refused a separate trial, but on the...