Andrews v. Powell

41 Miss. 729 | Miss. | 1868

Peyton, L,

delivered the opinion of the court.

The defendant in error instituted suit in the Circuit Court of Monroe county against the plaintiffs in error. Process was issued, directed to the sheriff of that county, which was returned, as to both the defendants in the court below, “ not found in my county ; ” whereupon a summons was issued to the sheriff of Chickasaw county, which was returned properly executed as to both defendants. At the term of the court to which the last summons was made returnable, a judgment by default was taken against the defendants below, to reverse which this writ of error is prosecuted by the plaintiffs in error, who assign for error, the rendition of judgment against the defendants below, when it appeared on the face of the record that they were not sued in the county in which they were found.

It is insisted by counsel for defendant in error that this case comes within article 67 of the Rev. Code, 490. And that the court being one of general jurisdiction, it is to be presumed in support of the judgment, that the plaintiffs in error went into Chickasaw county after the commencement of the suit, and that the court acted upon evidence of that fact. Such a presumption would defeat the very object and purpose of the statute, and let in the evils intended to be provided against.

The statute provides that all civil actions shall be commenced in the county in which the defendants, or any of them, may be found, except otherwise provided, and except actions of ejectment, and actions quare clausum fregit, which shall be brought in the co.unty where the property is situated; and in such cases process may be issued against the defendant to any other county; but if a freeholder, resident in this State, shall be sued in any action, not local, out of the county of his freehold and residence, the venue shall be changed, on his application, to the county of his freehold and residence. Revised Code, 483, article 32.

Except in local actions, the defendants are to be sued in the county in which they maj’ be found, and the venue can be changed only by a freeholder, upon his application, sustained by satisfactory proof, stating the county of his freehold and residence.

The question which properly arises on the facts contained in the record is one of jurisdiction. The record shows that neither of the defendants in the court below was found in Monroe county, since the sheriff of that county returned “ not found ” as to both. And the writ of summons issued to the sheriff of Chickasaw county, is an original writ, and not a testatum writ.

Had it been a testatum writ, directed to the sheriff of Chickasaw county, after the usual form in the body of the process, it would have concluded in language like the following: “ And whereupon the sheriff of Monroe county hath made a return to said court, at a certain day now past, that the aforesaid David Andrews and John E. Tucker are not found in his county; and thereupon it is testified in said court, that the aforesaid Andrews and Tucker are in your county.” Upon a return of non est inventus, the court must be satisfied by testimony that the defendant after commencement of the suit had gone into another county, before such writ can properly issue.

This question has been before this court on former occasions. In the case of the Bank of Vickburg v. Jennings et al., 5 How. 425, the suit was brought in the Circuit Court of. Warren county. A writ was issued against all the defendants, directed to the sheriff of Warren county, and at the same time a duplicate writ issued to the sheriff of Iiinds county. The writ to the sheriff of Warren was returned “not found” as to all the defendants ; the duplicate to the sheriff of Hinds was returned properly executed on all the defendants. Upon the return of the writs to the court, a judgment by default was taken, which on a subsequent day of the term was set aside, and the cause dismissed for the want of jurisdiction. And this judgment of dismissal was affirmed by this court. In the case of Woolley v. Bowie, AIS., this court has, in effect, decided that a sole defendant cannot legally be sued, out of the county in which he is found; and that a judgment by default against him, in such a case, cannot be sustained for the want of jurisdiction.

As the evidence upon which the orders and judgments of courts of general jurisdiction are founded, is not necessarily a part of the record, had the process, which issued to the sheriff of Chickasaw county, been a testatum writ, it would, primá facie, have been sufficient to sustain the judgment, on the ground of the presumption of law in favor of judgments of courts of general jurisdiction. JBut as the process to bring in defendants, who shall have gone into another county after the commencement of the suit, is required by the statute to be a testatum writ, such presumption cannot be indulged in this case, without a contradiction of the record, which clearly shows that the process to Chickasaw county to be served on the plaintiffs in error, was not a writ of that character.

The facts as presented by this record show that the court below had no jurisdiction of the plaintiffs in error.

We are, therefore, of opinion that the court below erred in rendering judgment against them.

The judgment will be reversed, and judgment entered here dismissing the case for want of jurisdiction in the court below.