Welch v. Kroger Grocery Co.

Citation180 Miss. 89,177 So. 41
Decision Date29 November 1937
Docket Number32910
CourtUnited States State Supreme Court of Mississippi
PartiesWELCH v. KROGER GROCERY Co. et al

Division B

APPEAL from chancery court of Prentiss county HON. JAS. A. FINLEY Chancellor.

Suit for attachment by O. G. Welch against the Kroger Grocery, etc., Company and others. From a decree sustaining a plea and dismissing the bill, plaintiff appeals. Affirmed.

Affirmed.

Jas. A. Cunningham, of Booneville, and Chas. L. Neely and Robinson & Robinson, all of Memphis, Tenn., for appellant:

Mr. Welch sought to avail himself of the statutory remedy provided by Section 173-174 of the Annotated Code of Mississippi, 1930, and while he had his commonlaw remedies in the State of Tennessee and in the State of Mississippi, but under the law he has a right to choose the court and the procedure through which to litigate his grievance. It was his choice to bring this suit in the Chancery Court of Prentiss County, Mississippi, where the defendant Kroger Grocery Company had properties in the hands of others which could be subjected to the satisfaction of his demands; and when the Mississippi Legislature created this right and remedy they did not make it an alternative remedy but when any debtor should choose to avail himself of this remedy he could do so without any pass-word; the Legislature left the door of the court open and the same door has been open to the chancery tribunals of Mississippi for better than a hundred years and no chancellor has ever yet ordered the door closed to litigants who comply with the statute in bringing their cause into court.

1. C. J., page 958, sec. 100.

Where complainant has a legal right to bring a suit, he can bring it where he may choose to bring it, just so he brings it into a court of jurisdiction and where he brings it into a court of exclusive statutory jurisdiction, such as in the instant case, his motives cannot be questioned as to what court he brings it in and as to who he brings in as defendants.

Johnson v. King-Richardson Co., 36 Fed. (2d), 675; Clark v. L. & N. R. R. Co., 130 So. 302, 158 Miss. 287.

Under the comity of states founded by necessity out of respect and obedience to the fundamental law of the nation, Mr. Welch was entitled to the same recognition in your Honor's court that any citizen of the State of Mississippi was entitled to.

Bean v. Bean, 147 So. 306; Hunt v. Gardner, 112 So. 7.

We respectfully submit that whether the Legislature was wise or foolish in passing tiffs statute that it was passed for non-residents the same as residents and could not otherwise be construed in harmony with our fundamental laws, and that the Legislature did not in any sense contemplate that a citizen of this state or any other state would be disfranchised, so to speak, from availing himself of the legal remedies afforded him by statute just because he had at some time before undertaken in what he afterwards decided was an improper place or an improper court, or that he had proceeded in an improper way, or that he had met difficulties in developing his case and had seen proper to avail himself of his rights as an American citizen which right is met out by all courts that he may take a non-suit; that having taken a non-suit he does not stand equal footing with the equal citizens of tiffs state or other states but is to forever carry the brand of Cain just because he saw proper on some former day to avail himself of a non-suit where he felt himself working under a disadvantage.

We earnestly insist that this court ought to reverse this cause and remand it for trial on its merits.

E. C. Sharp, of Booneville, and Eminent W. Braden and Ceylon B. Frazer, both of Memphis, Tenn., for appellees:

Generally the court will not take jurisdiction based on service of process on defendant who was brought within reach of process wrongfully or fraudulently or by deceit, or in any other improper device chargeable to plaintiff.

Nicholson v. G. M. & N. R. R. Co., 177 Miss. 844, 172 So. 306.

Courts of one state are not required to assume jurisdiction of causes between non-residents arising in other jurisdictions and the question of jurisdiction in transitory actions between non-residents is one of discretion on the part of the court assuming jurisdiction.

Jackson & Sons v. Lumbermen's Mutual Cas. Co., 168 A. 895; Universal Adjustment Corp. v. Midland Bank, 184 N.E. 152; Hagan v. Viney, 169 So. 391; Stewart v. Litchenberg, 86 So. 734; 7 R. C. L. 1035, par. 65; 15 C. J. 816, par. 118.

The question as to whether the courts of a state are to take jurisdiction of a controversy between two nonresidents on a foreign cause of action is largely one of fact.

Jackson & Sons v. Lumbemen's Mutual Cas. Co., 168 A. 895.

It is against the public policy of the State of Mississippi for this state to be made the dumping ground for law suits between citizens of another state when they cannot recover in their own state.

Shaw v. Postal Tel. & Cable Co., 79 Miss. 670.

Where there is a complete, adequate and certain remedy at law there should be, in so far as purely legal litigation is concerned, no recourse to chancery.

Clark v. L. & N. R. R. Co., 130 So. 302.

The court should interpret the purpose and spirit of procedural legislation rather than adhere to the technical letter.

Clark v. L. & N. R. R. Co., 130 So. 302.

Argued orally by Emmett Braden for appellee.

OPINION

Griffith, J.

Appellant is a resident of Shelby county in the state of Tennessee. Appellee company is a corporation of the state of Ohio, but operates grocery stores in several states, including Mississippi and Tennessee. One of these stores is located at 1725 Poplar avenue, Memphis, Tenn. On March 9, 1935, appellant was seriously injured on the sidewalk in front of the said store, as a proximate consequence, as he avers, of the negligence of the agents and managers of the store. On April 30, 1935, appellant filed suit against appellee company in the circuit court of Shelby county, in Tennessee, for the recovery of damages for said injury, but took a nonsuit as hereinafter mentioned.

Thereafter on February 11, 1936, appellant filed his bill in the chancery court of Prentiss county in this state by way of attachment in chancery; the bill seeking to recover damages for the same injury above mentioned, and the attachment was served on the employes of one of appellee's stores...

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15 cases
  • Roberts v. Williams, GC 6635-K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • 30 Julio 1969
    ...to the completion of the record, is not a judicial, but a clerical, act. The Mississippi Supreme Court in Welch v. Kroger Grocery Company, 180 Miss. 89, 177 So. 41, 42 (1937), recognized the well-settled state law in these "In courts of law, the judgment is rendered when the court signifies......
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    ...... 74 Miss. 782; Sec. 5196, Miss. Code of 1930; Swing v. Brister, 40 So. 146, 87 Miss. 516; Welch v. Kroger. Grocery Co., 177 So. 41; Western Union Telegraph Co. v. Jennings, 110 Miss. 673, 70 ......
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    ...St. L. & N. O. R. Co. v. Doyle, 60 Miss. 977; Western Union Telegraph Co. v. Jennings, 110 Miss. 673, 70 So. 830; Welch v. Kroger Grocery Co., 180 Miss. 89, 177 So. 41; American Law Institute, Miss. Annotation, Section 377; Shaw v. Postal Telegraph Cable Co., 79 Miss. 670, 31 So. 222, 56 L.......
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