101 So. 370 | Miss. | 1924
delivered the opinion of the court.
The appellant, Fitzgerald, trustee, filed a replevin suit in the circuit court of Wayne county, alleging that the defendant, Charlie Williams, on the 29th day of August, 1922, executed a certain deed of trust, with plaintiff, Fitzgerald, as trustee, to secure C. H. Cole, Jr., T. 0. Slaughter, and C. A. Massey for an indebtedness therein named, amounting to eight hundred dollars, being payable fifty dollars monthly, and that the defendant had made default in the payment of the deed of trust' and the debt which it secures, and that by reason of said default the beneficiaries had requested plaintiff to foreclose said deed of trust, and set forth certain property by description therein, and alleged that the plaintiff had applied to the defendant, Williams,-to deliver up said property to him as trustee to enable him to foreclose said deed of trust, but that defendant refused to deliver the property as required by said deed of trust, and that an action of replevin had accrued to the plaintiff to sue for and demand of the defendant the possession of said property.
The defendant filed a plea to the jurisdiction of the court on the ground that at the time of the filing of said cause, and for a great time prior thereto, and at the present time the defendant is not and has not been a citizen of, nor lived nor resided in, the county of Wayne, and that the property described in the declaration, affidavit, and writ is not and has not been located in Wayne county, bnt is and has been in Clarke county, and that at the time of the filing of such suit, and for a great time before then and now, the defendant is a citizen and resides in Clarke county, in the state of Mississippi. Wherefore the defendant moves the court to dismiss the suit at the cost of the plaintiff, because this court has no jurisdiction of the cause. On said motion the defendant, Williams, testified that he was a citizen of Clarke county at the time of suing out of the writ and since, and that the property sought to be replevied was located in Clarke county at said time, and that the property was not found in Wayne county, and defendant did not live there. It seems to be the only evidence introduced on the plea to the jurisdiction. The circuit judge sustained -the plea to the jurisdiction and dismissed the cause, front which judgment this appeal is prosecuted.
“Venue. — The action of replevin may be instituted in the circuit court of a county, or the justice’s court of a district, in which the defendant, or one of several, or the property, or some of it, may be found, and all proper process may be issud to other counties or districts, as the case may be.”
It is contended by the appellant that the words “in which the defendant, or one of several, or the property, or some of it, may be found,” give jurisdiction in the court of the county or district where the defendant may actually be at the time of the service of the process, or where the property, or some of it, may actually be, at such time, without regard to the residence or domicile of the defendant or the situs of the property; while the appellee insists that the term “may be found,” as applied to a defendant, means his place of residence at the time of suing out the writ. Ity section 486, Hemingway’s Code (section 707, Code of 1906), prescribing the venue of actions generally in civil suits, the same language is used; it providing'that an action “shall be commenced in the county in which the defendant, or any of them, may be found,” making certain exceptions as to certain actions, and concluding with the provision:
“If a citizen resident in his 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. ’ ’
In the case of Christian v. O’Neal, 46 Miss. 669, construing this statute, the court held that if the defendant failed to apply for a change of venue, the court had jurisdiction to render judgment against him in the court where the suit was brought, although he resided in another county. In the case of Stanley v. Cruise (Miss.), 99 So. 376, the court stated in general terms in the second syllabus:
And it cited the case of Lewis v. Sinclair, 126 Miss. 16, 88 So. 401. In neither of these cases was the precise point here sought to be presented by the record, because in neither of the cases was the writ served on the defendant in the district, or the property found in the district, where the cause was sued out.
We do not deem it necessary now to decide whether the service of the copy of the writ on the defendant alone in a county outside of the county of his residence would confer jurisdiction of the suit in such county, but in the case before us the defendant, on being serv'ed with the writ in Wayne county, gave a bond for the forthcoming of the property. We think that the giving of the bond for the forthcoming of the property was an admission that the property was situated within Wayne county at the time, and 'had the effect of preventing the sheriff from making a further search for the property, and having gotten the benefit of the bond, and being permitted to retain the property, would forbid his questioning the jurisdiction. Certainly the defendant was in Wayne county at the time of the service of the writ, and gave bond to have the property at court. We think, therefore, it was error for the court below to dismiss the suit, and the judgment will be reversed, and the cause remanded for further proceedings in that court.
Reversed and remanded.
Headnote 1. Venue, 40 Cyc, p. 113.
