Opinion
No. 40872.
October 20, 1958.
1. Venue — separate maintenance — jurisdiction — evidence — Trial Court, which had jurisdiction of subject matter, lacked venue jurisdiction to hear and determine matter and should have transferred case to proper venue.
In suit for alimony and separate maintenance brought in Tate County, the residence of the wife, where the evidence established that the husband was a resident of Alcorn County the Chancery Court of Tate County should have transferred the case to Alcorn County. Secs. 1274, 1441, 2738, Code 1942.
2. Appeal — separate maintenance — jurisdiction — where Trial Court had jurisdiction of subject matter but lacked venue jurisdiction, Supreme Court reversed and transferred case to venue to which it belonged.
In such case, where the Chancery Court of Tate County should have transferred the cause to the Chancery Court of Alcorn County which was the residence of the husband, decree would be reversed and cause would be transferred to Alcorn County, since case was one where Chancery Court of Tate County, although having jurisdiction of the subject matter, did not have venue to proceed against sole defendant who had made a timely objection to venue. Secs. 1274, 2738, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Tate County, HERBERT HOLMES, Chancellor.
Stovall Price, Corinth, for appellant.
I. Venue of suit for separate maintenance against resident-defendant is in county where defendant resides. Garland v. Garland, 50 Miss. 694; Wilson v. Wilson, 198 Miss. 334, 22 So.2d 161; Burgin v. Smith, 163 Miss. 797, 141 So. 760; Hager v. Coburn, 150 Miss. 193, 116 So. 540; Secs. 1274, 2738, Code 1942; Griffith's Miss. Chancery Practice, Secs. 151, 155.
II. Appellant did not waive his objection to lack of venue. Griffith's Miss. Chancery Practice, Sec. 157.
III. This suit should have been dismissed for lack of jurisdiction or transferred to Chancery Court of Alcorn County because of lack of venue. Bryant v. Lovitt, 231 Miss. 736, 97 So.2d 730; Holyfield v. State, 194 Miss. 91, 10 So.2d 841; King v. Ainsworth (Miss.), 83 So.2d 97; Secs. 1274, 1433, 1441, Code 1942; Griffith's Miss. Chancery Practice, Sec. 27.
Johnson Trout, Senatobia, for appellee.
I. The Chancery Court of Tate County possessed the requisite jurisdiction and venue to hear and determine this cause. Reed v. Reed, 85 Miss. 126, 37 So. 642; Latham v. Latham, 223 Miss. 263, 78 So.2d 147; Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; Tanner v. Tanner, 111 Miss. 460, 71 So. 749; Smith v. Deere, 195 Miss. 502, 16 So.2d 33; Jones v. State ex rel, McFarland, 207 Miss. 208, 42 So.2d 123; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316; Secs. 1274, 1441, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Secs. 21, 27, 30-31, 156.
II. The appellant is estopped to allege or set up that he was not a resident citizen of Tate County at the time of institution of suit in the Lower Court. Izard v. Mikell, 173 Miss. 770, 163 So. 498; Peeler v. Hutson, 202 Miss. 837, 32 So.2d 785; Martin v. Hartley, 208 Miss. 112, 43 So.2d 875; Crowe v. Fotiades, 224 Miss. 422, 80 So.2d 478; Barron v. Federal Land Bank of N.O., 182 Miss. 50, 180 So. 74; 19 Am. Jur. 33; 27 Am. Jur. 419; Amis on Divorce Separation in Miss., Sec. 1.
The appellant Bobby Trainum, who was 18 years of age, and the appellee Peggy Sue Trainum, who was 16 years of age, were married at Hernando, DeSoto County, Mississippi, on April 14, 1956. They separated on that same day, the appellant having carried the appellee to the home of her parents in Tate County, where she has since resided. He thereupon returned to the home of his father at Corinth in Alcorn County, Mississippi, where he re-entered the high school at the beginning of its next term, and where he has continued to reside since 1942, except for a temporary stay in DeSoto County for a period of approximately 6 weeks where his father was operating a portable sawmill, and where the appellant was employed.
On May 5, 1957, the appellee filed this suit in the Chancery Court of Tate County, where she still resided with her parents, and asked for a decree against the appellant for alimony pendente lite, separate maintenance, and attorney's fees, no decree of divorce having been sought by either of the parties in this litigation.
On Sunday after the suit was filed a summons was served on the appellant by personal service in DeSoto County when he was found in that County temporarily. Upon the filing of the bill of complaint the chancellor set the cause for hearing in vacation on May 17, 1957, in Tate County, and when the appellant appeared before the court at the vacation hearing in Tate County he was served with an additional summons in that county. He filed a petition wherein he objected to the cause being heard in Tate County for lack of venue therein, setting forth that he was a resident of Alcorn County at the time the suit was filed and on the date of the vacation hearing therein. His objection to the venue of the case was denied and he thereupon asked for an interlocutory appeal to this court, but the chancellor ordered that the hearing proceed on the merits of the bill for alimony pendente lite, separate maintenance, and attorney's fees. At the conclusion of this hearing, wherein it was conclusively shown that the appellant was a resident of Alcorn County, Mississippi, and that the appellee and her father knew at the time the bill of complaint was filed that he was a resident of such county, the trial court instead of transferring the cause to the Chancery Court of Alcorn County, adjudicated that the appellant should pay unto the appellee the sum of $80 per month as alimony pendente lite for the support of the appellee and her child, whom the chancellor found was the child of the appellant, and also required that he should pay the total sum of $100 to her as an attorney's fee. The court further ordered that the appellant should stand committed until he should execute a bond in the sum of $500 to secure the payment of the award made to the appellee, as the same should become due and payable during the pendency of this appeal.
Thereupon the court granted an interlocutory appeal without supersedeas and an application was made to a member of this Court for the appeal with supersedeas, which was accordingly allowed.
This Court has heretofore overruled a motion of the appellee to docket and dismiss this appeal and there is now presented to this Court the question of whether or not the trial court, which had jurisdiction of the subject matter, had venue to hear the matter in Tate County on May 17, 1957, when the decree appealed from was granted.
(Hn 1) The appellant in his brief discusses Sections 2738 and 1274 of the Code of 1942, in support of his motion in the trial court for the case to be there dismissed. But we find that the question at issue is controlled by Section 1441, Code of 1942, which reads as follows: "Where an action is brought in any circuit, chancery, county, or justice of the peace court of this state, of which the court in which it is brought has jurisdiction of the subject matter, but lacks venue jurisdiction, such action shall not be dismissed because of such lack of proper venue, but on objection on the part of the defendant shall, by the court, be transferred to the venue to which it belongs."
(Hn 2) Since the trial court should have transferred the case to the venue to which it belonged we do hereby reverse the decree rendered in Tate County and order that the cause be transferred to the Chancery Court of Alcorn County for hearing on the appellee's bill of complaint for alimony pendente lite, separate maintenance, and attorney's fee; this being the judgment which should have been rendered by the trial court.
The decree of the chancery court is reversed and the cause ordered to be transferred for hearing to the Chancery Court of Alcorn County, this being a case where the Chancery Court of Tate County, although having jurisdiction of the subject matter, did not have venue to proceed against the sole defendant who was a resident citizen of Alcorn County and had made timely objection to the venue. See Sections 1274 and 2738, Code of 1942, and Sections 27, 151 and 155, Griffith's Mississippi Chancery Practice, and the cases thereunder cited.
Reversed and cause transferred accordingly.
Lee, Kyle, Arrington and Gillespie, JJ., concur.