American Surety Co. v. City of Holly Springs

77 Miss. 428 | Miss. | 1899

Terral, J.,

delivered the opinion of the court.

The city of ITollv Springs sued the Memphis Well Company and the American Surety Company, of New York, in the circuit court of Marshall county, in assumpsit, for $1,000 damages for breach of contract. A summons was issued to said county for the defendants, and it was returned not found as to both of them; a duplicate summons was issued to ITinds county, and was there served upon J. L. Power, secretary -of state. At the ensuing term of court the plaintiff dismissed its suit as to the Memphis Well Company, and took judgment by default against the American Surety Company, and upon a writ of inquiry recovered a final judgment against it for $1,000.

Our code, § 650, provides that civil actions shall he commenced in the county in which the defendants, or one of them, • may be found, and as neither of the defendants was found in Marshall county, the court there had no jurisdiction of the case.

Chapter 64, acts of 1894-, which authorizes foreign surety companies to do business in this state, might. hatm wisely provided that suits against them might be brought in any county in which they did business; but ayo pan pla.ee no construction upon that act Avhich will sustain the 'judgment of the court in Ihis cause.

AVe must gather the intention of the legislature from the plain language of the act, and it does not impart any modification of § 650. The circuit .court was Avithout jurisdiction, and its judgment is a nullity. Wolley v. Bowie, 41 Miss., 553.

Reversed and dismissed.