112 So. 19 | Miss. | 1927
"1. That M.M. Cloud is a resident citizen and householder in said Madison county.
"2. The said United States Fidelity Guaranty Company is a nonresident incorporated insurance company whose principal place of business is not in Copiah county, Miss.
"3. The alleged loss or damage or cause of action occurred in Madison county, Miss., and not in Copiah county, Miss.
"4. The plaintiff is not a resident citizen of Copiah county, Miss., but has his residence in another county.
"5. Said M.M. Cloud is a public officer, the sheriff of Madison county, Miss., in which county he has his household and residence.
"6. For other reasons apparent on the face of the record and to be assigned at the hearing, and among others that M.M. Cloud is a conservator of the peace of *647 Madison county, Miss., which requires his presence in said county for the proper discharge of his duties."
The following facts were agreed to upon the hearing of the said motion:
"1. That said M.M. Cloud is a resident citizen and householder in said Madison county.
"2. The said United States Fidelity Guaranty Company a nonresident incorporated insurance company whose principal place of business is not in Copiah county, Miss.
"3. The alleged loss or damage or cause of action occurred in Madison county, Miss.
"4. The plaintiff is not a resident citizen of Copiah county, Miss., but has his residence in another county.
"5. Said M.M. Cloud is a public officer, the sheriff of Madison county, Miss., in which county he has his household and residence."
The cause was thereupon transferred to Madison county, over the objection of the plaintiff, and a trial had in said county, resulting in a verdict in favor of the defendants, from which judgment an appeal has been prosecuted to this court, and the action of the Copiah county circuit court in granting a change of venue is assigned for error with other assignments.
The suit was filed prior to 1926, and was pending in the said circuit court of Copiah county prior to the assembling of the legislature for the session of 1926. At the 1926 session of the legislature, chapter 155 of the Laws of 1926, amending chapter 149, Laws of 1918, was passed, and approved on February 24, 1926. The section, as amended, reads as follows:
"Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided, and except actions of ejectment *648 and actions of trespass on land, and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land or some part thereof, is situated; but if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the county of his residence, and in such cases, process may be issued against the defendant to any other county. If a citizen resident in this state shall be sued in any action, not local, out of the county of his household, and residence, or if a public officer be sued in any such action, out of the county of his household and residence; although a surety or sureties, or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed on his application, before the jury is empaneled, to the county of his household and residence."
At the 1926 May term, subsequent to the passage of the act, the above motion for change of venue was made and allowed. Prior to the passage of the above act of 1926, an officer could be sued out of the county of his residence, and was not entitled to have the venue changed to his county where the suit was brought and where a joint defendant lived, or where a surety lived, or, in case of a corporation, where it had an office or place of business. The question for decision now is whether the above act applies to a suit pending before or at the time of the passage of the act.
Ordinarily, a statute is to be given prospective operation, and will not be construed to effect the rights in suits pending before its passage. In Richards v. City Lumber Co.,
"The rule is fundamental, in the construction of statutes, that they will be construed to have a prospective operation, unless the contrary intention is manifested by the clearest and most positive expression; such a construction should be placed upon a statute in order to preserve, if possible, its constitutionality."
See, also, Carson v. Carson,
We do not think from the language of the above statute that it is intended to have a retrospective application. It should be given a prospective operation; and, consequently, the court below erred in granting the change of venue.
It is unnecessary to consider the other questions presented, and the judgment of the court below will be reversed and the cause remanded to the circuit court of Copiah county for further proceedings.
Reversed and remanded.
