Opinion
No. 38815.
June 8, 1953.
1. Attachment in chancery — carriers — venue.
An attachment in chancery to recover for personal injuries against a nonresident corporation and a party resident in Hinds County was brought in Winston County and a motor transportation company operating as a common carrier in Winston County was made a party defendant on the admitted allegation that the transportation company had in its hands funds of the nonresident defendant: Held, that the venue was properly laid in Winston County. Secs. 1274, 1433, 1434, Code 1942.
Headnote as approved by Arrington, J.
APPEAL from the chancery court of Winston County; J.K. GILLIS, Chancellor.
Ward Ward, for appellants.
I. The railroad statute is not applicable and venue must be determined by the general statute. Secs. 1274, 1433, 1434, Code 1942; 74 C.J.S., 380, Sec. 25; Clark v. L. N.R.R., 158 Miss. 287, 130 So. 302; Dean v. Brannon, 139 Miss. 312, 104 So. 173; Mississippi Power Light Co. v. Lowe, 179 Miss. 377, 175 So. 196.
II. Under the general statute this suit could be maintained as to the two corporate defendants only in Hinds County, where Gulf Transport Company, a domestic corporation, is domiciled, and where Continental Southern Lines, Inc., a foreign corporation, has designated an agent for service of process; or in Forrest County, where the cause of action occurred. The only motion before the Court, however, is that of defendants Lucas and Continental Southern Lines to remove the cause to Hinds County. Sanford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887; Foreman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344; Estes v. Bank of Walnut Grove, 172 Miss. 499, 159 So. 104; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316; Plummer-Lewis Co. v. Fancher, 111 Miss. 656, 71 So. 907; Cook v. Pitts, 114 Miss. 39, 74 So. 777, quoting from Campbell v. Triplett, 74 Miss. 365, 20 So. 844; Secs. 1274, 1433, Code 1942; Sec. 707, Code 1906; Chap. 90, Laws 1928; 72 C.J.S. 1051, Sec. 41.
III. If venue does not lie in Winston County, under the railroad statute as to Gulf Transport Company, then Ernest H. Lucas, a resident citizen of the First Judicial District of Hinds County, has the unquestioned right to have the venue changed to the county and district of his household and residence. Sec. 1433, Code 1942; Chap. 90, Laws 1928; 67 C.J.S. 92, Sec. 149; 67 C.J. 97, Sec. 155, p. 102; Clark v. L. N.R.R. Co., supra.
Strong Smith, for appellee.
I. In an attachment in chancery under Sec. 173, Code 1942, the resident defendant having property in his hands belonging to the nonresident defendant or owing a debt to the nonresident defendant is a necessary and proper party defendant. Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So.2d 844; Inman v. Travelers' Ins. Co., 153 Miss. 405, 121 So. 107; Craig v. Gaddis, 171 Miss. 379, 157 So. 648.
II. Sec. 1434, Code 1942, which fixes the venue against railroads and motor transportation lines and other public utilities, applies to suits in chancery as well as to suits in circuit court. Sec. 1412, Code 1942; Masonic Benefit Ass'n v. Dotson, 111 Miss. 60, 71 So. 266; Holyfield v. Adams, 194 Miss. 91, 10 So.2d 842.
III. In a suit wherein a motor transportation line is a necessary and proper defendant the suit may be brought in any county through which said defendant operates its motor transportation line or route. Sec. 1434, Code 1942; Miss. Power Light Co. v. Lowe, 179 Miss. 377, 175 So. 196; Y. M.V.R.R. Co., et al. v. Denton, 160 Miss. 850, 133 So. 656.
IV. In an attachment suit in chancery, if the complainant's debtor could bring suit against his debtor in a certain jurisdiction, then the complainant would have the same right to bring her suit in said court. Keathley v. Hancock, 212 Miss. 1, 53 So.2d 29; Southern Pacific R.R. Co. v. Lyon, 99 Miss. 186, 54 So. 728.
V. Where there are two or more defendants to a transitory cause of action and the venue against said defendants is fixed at two or more places by two or more statutes, the complainant may elect to bring suit in any county which has venue as to any one of the defendants. Myers v. Vernon, 212 Miss. 85, 54 So.2d 168.
VI. A corporation is not entitled to file a motion for change of venue. Plummer-Lewis Co. v. Trancher, 111 Miss. 656, 71 So. 907; Nicholson v. Gulf, Mobile Northern Railroad Co., 177 Miss. 844, 172 So. 306; Forman v. Miss. Publishers' Corp., 195 Miss. 90, 14 So.2d 344.
This is an appeal from an interlocutory order of the Chancery Court of Winston County overruling a motion of two of the defendants in the court below, namely: Continental Southern Lines, Inc., and Ernest H. Lucas, to change the venue of this suit from Winston County to Hinds County.
This suit is an attachment in chancery brought by the complainant, Mrs. Blossie Wicker, to recover damages from the Continental Southern Lines, Inc., a nonresident, and Ernest H. Lucas, a resident citizen of Hinds County, Mississippi, for personal injuries and to attach funds or property in the hands of Gulf Transport Company, a Mississippi corporation domiciled in Jackson, Mississippi, and Paul Hunt, a resident of Choctaw County, Mississippi, belonging to the Continental Southern Lines, Inc. Venue in Winston County is based upon the allegation that Gulf Transport Company is a common carrier operating a motor transportation line in Winston County. Gulf Transport Company answered and admitted that it was indebted to the defendant, Continental Southern Lines, Inc.
Appellants contend that Section 1434, Miss. Code of 1942, does not apply and that the venue is controlled by Section 1433, Miss. Code of 1942, or by Section 1274, Miss. Code of 1942.
After a careful review of the record in this case and the contentions made by the appellants, we are of the opinion that (Hn 1) under the principles announced in the case of Clark v. Louisville N.R. Company, et al., 158 Miss. 287, 130 So. 302, the action of the chancellor in overruling said motion was correct and the judgment appealed from is therefore affirmed.
Affirmed and remanded.
McGehee, C.J., and Lee, Kyle, and Ethridge, JJ., concur.