Williams v. Stewart
| Decision Date | 08 April 1901 |
| Citation | 79 Miss. 46,30 So. 1 |
| Court | Mississippi Supreme Court |
| Parties | JOHN WILLIAMS v. JAMES H. STEWART, EXECUTOR, ETC |
FROM the circuit court of, second district, Coahoma county. HON FRANK A. MONTGOMERY, Judge.
Williams appellant, was plaintiff, and Stewart, executor, was defendant in the court below. The facts are fully stated in the opinion of the court.
Reversed and remanded.
R. H Wildberger and Alexander & Alexander, for appellant.
Section 653, code of 1892, was obviously designed to meet the case where the nonresident excutor or administrator could not be found in this state. It was not intended to supersede the general law, which authorizes a suit to be brought wherever the defendant is found. Section 650 is applicable to circuit courts, provides that civil actions shall be commenced in the county in which the defendants, or any of them, may be found, and provides that, "If a citizen resident in 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, to the county of his household and residence." Section 653 is not a restriction or limitation on 650, but enlarges the jurisdiction of our courts as to suits which have to be brought by publication of summons for nonresident defendants. It has no application to cases where the executor is found in this state and converts property here, and is also found here, all in the same jurisdiction. But for § 653, a nonresident executor could never be sued in this state except where the jurisdiction was dependent upon the seizure of property. But now by that section, where publication alone is made, venue is fixed in a certain county. But there is no provision of law which forbids a non-resident executor coming into this state and making contracts here, and selling property anywhere within the state. If § 653 provides the only venue, the nonresident executor who detained personal property in a county other than that of his appointment could not be sued in that county in replevin, and we would have to bring replevin in a county where the property was not situated or found. A nonresident executor, where the administration was pending, say in Wilkinson county, and who detained cotton in Tishomingo county from a citizen of that county, could force that citizen to go to Wilkinson county to bring replevin for a bale of cotton. The true rule is found from a construction of all the statutes, and especially of § 2395. If Stewart was a freeholder or a householder of any county in this state there would be more reason in the contention, but his affidavit shows that he is a nonresident of the state, and, therefore, having contracted in Clarksdale and incurred liability there, and having been found there, the jurisdiction is complete. We see no reason why appellee shall not be amenable to suit just as other nonresidents.
Rush & Gardner, for appellee.
The statute authorizing suits against executors, etc., out of the state must be complied with, and § 653 of the code is plain and unambiguous, and seems to need no argument in support of the action of the court below in dismissing the suit, on the facts set out in the cause of action and by plea showing the representative capacity in which the defendant was sued, and his nonresidency and the pendency of his administration in Leflore county, Mississippi, where letters of executorship, with the will of Enos Rogers, deceased, annexed, was pending in the chancery court of said county.
This is an action by Williams against Stewart, as executor of the last will and testament of Enos Rodgers, deceased, for breach of contract in the sale of the merchantable cotton...
To continue reading
Request your trial