Opinion
No. 26968.
April 9, 1928.
1. EQUITY. Decree overruling motion to dismiss bill on ground defendant was nonresident of county was properly set aside at same term.
Trial court held not to have committed error in setting aside at same term of court a decree overruling motion to dismiss on ground defendant was not a resident of county, after sufficient showing by defendant in support of motion to set aside decree on such ground.
2. VENUE. Chancery court has no jurisdiction of cause where defendant had domicile and fixed place of residence in another county ( Hemingway's Code 1927, section 336).
Under Hemingway's Code 1927, section 336 (Code 1906, section 561), requiring cases to be brought in chancery court of county where defendant or necessary party defendant may reside or be found, chancery court failed to acquire jurisdiction of cause where defendant had domicile and fixed place of residence in another county.
3. EQUITY. Suit to enforce decree in another suit held not ancillary so as to confer jurisdiction on court in which original decree was rendered.
Original suit to enforce collection of decree in another suit held not ancillary thereto in any sense that would confer jurisdiction on court in which original decree was rendered as respected nonresident defendant.
4. EQUITY. Dismissal on sole ground that defendant was not resident of county should be limited to dismissal for want of jurisdiction of person.
Motion to dismiss, based on sole ground that defendant was not resident of county, did not present any issue as to jurisdiction of cause of action requiring that decree be limited to dismissal of bill for want of jurisdiction of person.
APPEAL from chancery court of Hinds county, First district; HON. V.J. STRICKER, Chancellor.
Wells, Stevens Jones, for appellant.
The court was not justified in setting aside the first decree overruling the motion. This bill was filed in ample time, and after much effort and expense in attempting to locate the defendant, process was finally served upon her in Bolivar county. Her solicitor appeared for her in open court and presented the motion to dismiss. The motion was taken up and considered and overruled. At this hearing we did offer some evidence on behalf of the complainant and the defendant offered none. When the defendant's motion was overruled she made application to the court for a limited time in which to file an answer, and the court granted her five days in which to file her answer. This was upon her own application. Instead of filing the answer within the time applied for, other and separate counsel, to-wit: Messrs. Alexander Alexander, presented an application to set aside the former decree and to grant the defendant the right to present her motion afresh.
We say in the first place that the first motion was properly overruled for the reason that the defendant carried the burden of fact alleged in the motion and tendered no evidence to the court whatsoever, although the regular term of court convened on the fifth Monday, the 29th day of August, and the motion was taken up in regular order at the proper time in the presence of counsel for the defendant. At the first hearing there was no application to continue the case because of the absence of the defendant, or for any other reason, and the defendant, therefore had her day in court upon her own motion. One hearing of the motion was all she was entitled to under well-known principles of practice and procedure. When her motion was overruled she applied and was granted five days to file an answer. She could have stood upon her rights and prayed an appeal to the supreme court or objected to proceeding with the cause, but none of this she did. On the contrary, she obtained indulgence in filing an answer which was due on the opening day of the term and after getting this time allowed refused to comply with the order of the court and then came in with a belated application to set aside the first decree and have a new hearing upon the motion. The court had jurisdiction of the person and of the subject-matter on the first hearing, and the defendant, therefore, had no right to present a second motion or to have a hearing thereon, and in granting the second hearing there was a clear abuse of discretion and manifest error which should reverse this cause and remand it for further proceedings in the lower court.
The Hinds county court had jurisdiction because the proceeding here is an ancillary proceeding growing out of the original suit and the necessary relief should be granted the judgment creditor in enforcing collection of the judgment. It will be noted that in the proceedings at bar the only relief sought is purely that of discovery in aid of an execution. It is not, therefore, the ordinary suit wherein a monetary claim is made against the defendant or any property sought to be recovered as by a proceeding in rem and the ordinary considerations fixing venue do not apply. If the defendant could have been sued in Hinds county as Mrs. Coburn was in this instance, and if the Hinds county court has jurisdiction to render the original decree here sought to be enforced, then surely the Hinds county court should have jurisdiction of the ancillary proceeding by way of discovery and the motion therefore to dismiss should have been overruled. 2 C.J. 1336; 15 C.J. 826; 2 C.J. 826; 27 R.C.L. 804.
The evidence upon the motion was insufficient to show that appellee had a fixed domicile or residence in Lauderdale county. We call the court's attention to the fact that appellee is a widow without any household or dwelling house of any kind in Lauderdale county and without any furniture. In other words, she is in no sense a householder and according to her own plaintive plea has not whereon to lay her head. She could therefore be classified as a transient person that could be sued anywhere that process could be served upon her. The decree complained of should be modified to show that the bill was dismissed without prejudice. Extended argument on this point is unnecessary. If the court had no jurisdiction of the person then the court ought not to have gone further and ruled that equity had no jurisdiction of this cause. The decree of the court is too broad. It should not be so languaged as to constitute a bar to any subsequent effort to seek recovery in Lauderdale county, if that should be required.
Alexander Alexander, for appellee.
The court had no jurisdiction arising out of the fact that this defendant had on other occasions been before it. Appellant calls his bill herein "original bill." The defendant was not already before the court. Complainant prays for original summons upon defendant and prays that she be required to plead, answer or demur. It is not ancillary in the sense that it is inseparably interwoven with some former suit. The court in such former suit could never have included in its order or decree that the defendant deliver up to the sheriff, "whenever execution should issue," a list of her goods and possessions. If this proceeding is rightly conceived, every successful plaintiff, in the justice court, the county court and the circuit court, may in every case where there is a return of "nulla bona," have his bill in equity to compel a full disclosure of the whereabouts of the defendant's treasure stores, his family heirlooms, his bills and accounts received from share croppers, his holdings of corporate stock, or indeed the whereabout and contents of his hidden stocking with its meager hoardings.
Nor does the fact that the appellee may on a former occasion have permitted a hearing in Hinds county forever bar or estop her from setting up jurisdiction here. She has a right to waive jurisdiction; but this is just the obverse of the corresponding right to insist upon it. She only waives it, if at all, for the particular case. If it is optional in one case, it is optional in another. The merits of the original bill are not to be considered because the jurisdictional defense may and must be made in limine, whereupon the residence of the defendant becomes the controlling consideration. The defendant had the right to restrict the issue to the matters set up in her motion to dismiss for want of jurisdiction. These allegations, in brief were that she was not a citizen resident in Hinds county, but in Lauderdale county. The learned chancellor heard the testimony on this point and found that the allegations of her motion were sustained. This should settle the matter since the court's finding upon the facts is conclusive. Nor was there any want of testimony. Counsel for appellant err in their assumption that the defendant must be a "householder" of Lauderdale county. It is true that section 500, Hemingway's Code 1927, in dealing with venue of actions in the circuit courts, permits a suit to be transferred to the county of defendant's household and residence. But we are here dealing with sec. 336 thereof, which permits actions to be brought "in the chancery court of and county where the defendant . . . may be found." While the latter statute is broader than section 500, it does not cover the instant case, because the defendant was neither found in Hinds county nor does she reside therein. The record disclosed that she was not found in Hinds county, but was found in Bolivar county. This should dispose of the question of jurisdiction, though we do not of course concede that she could have been sued in Bolivar county. Griffith, Miss. Ch. Prac., sec. 155. The question of jurisdiction, as already stated, must be raised upon the threshold of the suit ( in limine), just as we have done. That is the reason why we may not suffer an inquiry upon the merits of the bill. It is true that the chancellor held the bill untenable on its face, but this was an obvious and unavoidable conclusion. Griffith, Miss. Ch. Prac., sec. 156.
The court had ample power to amend or vacate its findings upon the motion during the term. The proposition just announced is elemental. See Griffith, Miss. Ch. Prac., sec. 407; Johnson v. Success Brick Co., 104 Miss. 217. "Decisions and orders on motions are interlocutory, are therefore not conclusive on the court in the further progress of the case, and may be set aside, or revised or reshaped according to the exigencies of the case until final decree has been made." Griffith, sec. 407. The court found as a fact that the defendant was absent at the time of the first "hearing" on the motion "without fault of her own." There was of course no "hearing" when the matter was first pressed upon the court by counsel for complainant. His own solicitor furnished the only "testimony." It was an unwarranted ex parte proceeding. It developed that Hon. Chalmers Alexander, a member of the local bar was present when the motion was called up by complainant's counsel. He (Mr. Alexander) has been counsel for Mrs. Coburn in the original suit referred to in the instant bill — Coburn v. Omaha Liberty, etc., — which fact is attested by the report of such case in 109 So. 906. He thereupon without other authority than as amicus curiae, and not as indicated in the first order on the motion as the defendant having appeared by counsel. The record shows that Mr. Chalmers Alexander at this juncture stated he was uncertain of his employment. Also that the motion was prepared by Julian Alexander, a member of the firm of Alexander and Alexander, to which Mr. Chalmers Alexander did not belong. Hence counsel's language in the former order "that defendant stated in open court that she had no evidence to offer" was purely rhetorical. The order of dismissal was not only proper but was the only proper order. The court having found as a fact that the residence of the defendant was in Lauderdale county, the only proper order was for a dismissal of the cause. Griffith, Miss. Ch. Prac., sec. 344; Pollard v. Phalen, 98 Miss. 158.
Argued orally by J. Morgan Stevens, for appellant, and Julian Alexander, for appellee.
The appellant, George Edward Hager, filed an original bill in the chancery court of the First district of Hinds county against the defendant, Mrs. Bessie Street Coburn. The defendant filed a motion to dismiss this bill of complaint on the sole ground that she was not a resident citizen of Hinds county, but her domicile and fixed place of residence was in Lauderdale county, and therefore the court had no jurisdiction of the cause. In the absence of defendant and counsel who filed the motion, it was taken up in term time, and, no evidence being offered in support thereof, it was overruled and a decree entered allowing the defendant five days within which to file her answer to the bill. Thereafter the defendant and her counsel appeared in court and presented an application to the chancellor to set aside the decree overruling the motion and to grant the defendant a new hearing thereon. The court granted a new hearing on the motion, and, after hearing evidence thereon, it was sustained, and a decree entered adjudging that the court had "no jurisdiction over the said defendant nor the cause of action," and from this decree this appeal was prosecuted.
The bill of complaint averred, in substance, that the Omaha Liberty Fire Insurance Company theretofore sued the defendant, Mrs. Bessie Street Coburn, in the chancery court of the First district of Hinds county, and recovered a final decree for eight thousand nine hundred six dollars and seventy-one cents, with interest and costs; that an appeal was prosecuted from that decree to this court, and the decree was affirmed; that no part of said decree has been paid, save and except a small portion of the costs, and that it is still in full force and effect; that on November 29, 1926, the said Omaha Liberty Fire Insurance Company, by its proper officers, for value received, assigned said judgment or decree to the complainant, George E. Hager; that the complainant has been unable, although demand has been repeatedly made of defendant, to collect the said sum evidenced by the decree so assigned to him, or any part thereof; that the defendant had a large amount of assets which should be applied in satisfaction and payment of the said decree, but, after diligent search and inquiry, the complainant had been unable to ascertain the description and location of her property; that the defendant had concealed her said property for the specific purpose of preventing a levy of execution upon the same for the satisfaction of said decree; and that the complainant had no plain, adequate, and speedy remedy at law, and was entitled to a discovery of and from the defendant, showing the description, value, and location of all the said property so had and possessed by her. The bill prayed that the defendant be required to disclose, under oath, in answer to questions therein propounded, complete and detailed information in regard to all stocks, bonds, notes, evidences of debt, and other personal property, and all real estate, and property rights of every kind, owned by her, with detailed information as to the condition of the title, the value, and location of all such property.
The summons to answer this suit was served on the defendant, Mrs. Coburn, at Cleveland, in Bolivar county, and, at the hearing of the motion to dismiss the cause for want of jurisdiction, she testified that her home and domicile was in Lauderdale county; that, while she owned no real estate, and did not maintain a household in that county, she lived when there in the home of her sister in the city of Meridian; that she was born and raised in Meridian, and had always claimed her home and domicile to be there; that she was a registered voter of Lauderdale county, paid all her taxes there, and regularly voted in the elections held in that county.
The appellant first complains of the action of the court below in setting aside the first degree entered overruling the motion to dismiss the cause. This decree was set aside and a new hearing had at the same term of court at which it was granted, and during that term the court had the power to change, modify, correct, or vacate the decree, and, upon the showing made by the defendant in support of her motion to set aside this decree, we do not think the court committed error by so doing.
Upon the issue of fact as to whether the chancery court of the First district of Hinds county failed to acquire jurisdiction of this cause by reason of the fact that the defendant had her domicile and fixed place of residence in another county, we think the decision of the court below is correct. The venue of suits in the chancery court is regulated by section 561, Code of 1906 (section 336, Hemingway's 1927 Code); the particular part of this statute which is applicable to this case being the provision that "all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found." The proof shows that the defendant did not reside in Hinds county, and it is admitted that she was not found in that county. It is argued by counsel for the appellant that the chancery court of the First district of Hinds county had jurisdiction of this cause, because it is ancillary to the original decree or judgment rendered by said court and in aid of the complainant's rights in enforcing said judgment. Conceding that it is ancillary to the original suit in the sense that its purpose was to aid in securing complainant's rights in enforcing said decree, we do not think it is ancillary in any sense that will confer jurisdiction upon the court in which the original decree was rendered. This suit was begun by an original bill long after the conclusion of the original suit between the Omaha Liberty Fire Insurance Company and the defendant, and the fact that the defendant did not challenge the jurisdiction of the court in the original suit is in no way binding upon her in the present suit.
The appellant next contends that on the hearing of this motion to dismiss, which was based solely on the ground that the defendant was not a resident of Hinds county, the chancellor had no right to embody in the final decree the express holding that the chancery court had no jurisdiction of the cause of action, and to dismiss the cause both for want of jurisdiction of the person and of the cause of action, without reversing the rights of the complainant to file another suit. In support of this contention, counsel for the appellant makes an extensive argument to establish the proposition that "under original equity jurisdiction as administered by the English court of chancery, and as inherited by Mississippi as a part of that system, a judgment creditor is entitled to maintain a bill of discovery as to the assets of the judgment debtor and in aid of the unusual process of the court to collect the judgment."
Without expressing any opinion as to whether, upon a proper bill, the chancery court has jurisdiction of such a bill for discovery, we are of the opinion that this motion to dismiss, based upon the sole ground that the defendant was not a resident of Hinds county, did not present any issue as to the jurisdiction of the cause of action, and that the decree of the court below should have been limited to a dismissal of the bill of complaint for want of jurisdiction of the person of the defendant. The decree of the court below will therefore be reversed, and a decree will be entered here dismissing the bill without prejudice to the right of the appellant to file another suit.
Reversed, and decree here.