Opinion
No. 32910.
November 29, 1937.
1. JUDGMENT.
Where Tennessee resident brought action for negligence in Tennessee for injuries sustained in Tennessee, but took a voluntary nonsuit while court was in act of granting defendant's motion for directed verdict, his subsequent suit in Mississippi for same injuries, by way of attachment in chancery, was properly dismissed, in absence of showing of different state of facts, since Tennessee court had in effect decided defendant's nonliability under Tennessee law and comity required compliance with such decision (Code 1930, section 594; Code Tenn. 1932, section 8816).
2. TORTS.
Tort actions are governed by law of place where injury occurred.
3. JUDGMENT.
A "judgment" at law is the pronouncement thereof at the conclusion of the trial, and is "rendered" when court signifies its assent to the sentence of the law as a result of proceedings in the case.
4. JUDGMENT.
Except as modified by statute, entry of judgment is not the judicial act, but a clerical or ministerial act to be performed by clerk, and judgment is valid between parties after rendition without entry.
5. DISMISSAL AND NONSUIT.
Under Mississippi and Tennessee statutes, plaintiff may take nonsuit at any time before jury retires, though court has orally announced its decision and judgment, if court has done nothing further (Code 1930, section 594; Code Tenn. 1932, section 8816).
6. DISMISSAL AND NONSUIT.
Taking statutory nonsuit forestalls entry of judgment theretofore orally pronounced, divests such judgment of any force as res judicata, and requires entry of judgment of nonsuit, which does not displace first oral judgment as court's opinion and decision (Code 1930, section 594; Code Tenn. 1932, section 8816).
7. JUDGMENT.
Where tort action has been brought in proper court of state where injury occurred, and court has signified its assent to a judgment of nonliability, case cannot subsequently be entertained in another state through device of a nonsuit taken in original action, especially in absence of showing of different state of facts (Code 1930, section 594; Code Tenn. 1932, section 8816).
APPEAL from chancery court of Prentiss county. HON. JAS. A. FINLEY, Chancellor.
Jas. A. Cunningham, of Booneville, and Chas. L. Neely and Robinson Robinson, all of Memphis, Tenn., for appellant:
Mr. Welch sought to avail himself of the statutory remedy provided by Section 173-174 of the Annotated Code of Mississippi, 1930, and while he had his common-law remedies in the State of Tennessee and in the State of Mississippi, but under the law he has a right to choose the court and the procedure through which to litigate his grievance. It was his choice to bring this suit in the Chancery Court of Prentiss County, Mississippi, where the defendant Kroger Grocery Company had properties in the hands of others which could be subjected to the satisfaction of his demands; and when the Mississippi Legislature created this right and remedy they did not make it an alternative remedy but when any debtor should choose to avail himself of this remedy he could do so without any pass-word; the Legislature left the door of the court open and the same door has been open to the chancery tribunals of Mississippi for better than a hundred years and no chancellor has ever yet ordered the door closed to litigants who comply with the statute in bringing their cause into court.
1. C.J., page 988, sec. 100.
Where complainant has a legal right to bring a suit, he can bring it where he may choose to bring it, just so he brings it into a court of jurisdiction and where he brings it into a court of exclusive statutory jurisdiction, such as in the instant case, his motives cannot be questioned as to what court he brings it in and as to who he brings in as defendants.
Johnson v. King-Richardson Co., 36 F.2d 675; Clark v. L. N.R.R. Co., 130 So., 302, 158 Miss. 287.
Under the comity of states founded by necessity out of respect and obedience to the fundamental law of the nation, Mr. Welch was entitled to the same recognition in your Honor's court that any citizen of the State of Mississippi was entitled to.
Bean v. Bean, 147 So. 306; Hunt v. Gardner, 112 So. 7.
We respectfully submit that whether the Legislature was wise or foolish in passing this statute that it was passed for non-residents the same as residents and could not otherwise be construed in harmony with our fundamental laws, and that the Legislature did not in any sense contemplate that a citizen of this state or any other state would be disfranchised, so to speak, from availing himself of the legal remedies afforded him by statute just because he had at some time before undertaken in what he afterwards decided was an improper place or an improper court, or that he had proceeded in an improper way, or that he had met difficulties in developing his case and had seen proper to avail himself of his rights as an American citizen which right is met out by all courts that he may take a non-suit; that having taken a non-suit he does not stand equal footing with the equal citizens of this state or other states but is to forever carry the brand of Cain just because he saw proper on some former day to avail himself of a non-suit where he felt himself working under a disadvantage.
We earnestly insist that this court ought to reverse this cause and remand it for trial on its merits.
E.C. Sharp, of Booneville, and Emmett W. Braden and Ceylon B. Frazer, both of Memphis, Tenn., for appellees:
Generally the court will not take jurisdiction based on service of process on defendant who was brought within reach of process wrongfully or fraudulently or by deceit, or in any other improper device chargeable to plaintiff.
Nicholson v. G.M. N.R.R. Co., 177 Miss. 844, 172 So. 306.
Courts of one state are not required to assume jurisdiction of causes between non-residents arising in other jurisdictions and the question of jurisdiction in transitory actions between non-residents is one of discretion on the part of the court assuming jurisdiction.
Jackson Sons v. Lumbermen's Mutual Cas. Co., 168 A. 895; Universal Adjustment Corp. v. Midland Bank, 184 N.E. 152; Hagan v. Viney, 169 So. 391; Stewart v. Litchenberg, 86 So. 734; 7 R.C.L. 1035, par. 65; 15 C.J. 816, par. 118.
The question as to whether the courts of a state are to take jurisdiction of a controversy between two non-residents on a foreign cause of action is largely one of fact.
Jackson Sons v. Lumbermen's Mutual Cas. Co., 168 A. 895.
It is against the public policy of the State of Mississippi for this state to be made the dumping ground for law suits between citizens of another state when they cannot recover in their own state.
Shaw v. Postal Tel. Cable Co., 79 Miss. 670.
Where there is a complete, adequate and certain remedy at law there should be, in so far as purely legal litigation is concerned, no recourse to chancery.
Clark v. L. N.R.R. Co., 130 So. 302.
The court should interpret the purpose and spirit of procedural legislation rather than adhere to the technical letter.
Clark v. L. N.R.R. Co., 130 So. 302.
Argued orally by Emmett Braden for appellee.
Appellant is a resident of Shelby county in the state of Tennessee. Appellee company is a corporation of the state of Ohio, but operates grocery stores in several states, including Mississippi and Tennessee. One of these stores is located at 1725 Poplar avenue, Memphis, Tenn. On March 9, 1935, appellant was seriously injured on the sidewalk in front of the said store, as a proximate consequence, as he avers, of the negligence of the agents and managers of the store. On April 30, 1935, appellant filed suit against appellee company in the circuit court of Shelby county, in Tennessee, for the recovery of damages for said injury, but took a nonsuit as hereinafter mentioned.
Thereafter, on February 11, 1936, appellant filed his bill in the chancery court of Prentiss county in this state by way of attachment in chancery; the bill seeking to recover damages for the same injury above mentioned, and the attachment was served on the employes of one of appellee's stores in that county. Appellee company answered, and incorporated in its answer the following matter of plea: "That heretofore, on or about April 30, 1935, the complainant filed suit against this defendant on the same cause of action that is set out in the original (present) bill, in the circuit court of Shelby County, Tennessee. . . . That said cause came on for trial on January 30, 1936, and at the conclusion of the plaintiff's proof, the court was in the act of granting to this defendant a motion for a directed verdict; that before said motion could be properly entered the plaintiff took a voluntary non-suit."
When the cause came on for hearing in the chancery court of Prentiss county, the plea matter above set out was first and separately presented to the court, as provided by our present chancery practice statutes, and upon the argument thereof, both orally and by briefs, the chancellor sustained the plea and dismissed the bill, in which action we think he was correct.
Our court has frequently held, and we believe it is the rule everywhere, that actions in tort are governed by the law of the place where the injury occurred; and it was held in Shaw v. Cable Co., 79 Miss. 670, 31 So. 222, 56 L.R.A. 486, 89 Am. St. Rep. 666, that when, under the decisions of the state where the injury occurred, no liability against the defendant exists, no suit will be entertained here to enforce an asserted liability, although under our own laws such a liability would exist. It will be noted that the Tennessee court, at the conclusion of the testimony, "was in the act of granting to the defendant a motion for a directed verdict," and that before the formalities of entry could be accomplished the plaintiff took a nonsuit. It is the import of this language that the court had announced its decision or conclusion, or signified its assent that a directed verdict was proper and would be granted, otherwise it could not have been in the act of so granting.
In courts of law, the judgment is rendered when the court signifies its assent to the sentence of the law as a result of the proceedings in the case, Clark v. Duke, 59 Miss. 575, 579; or, as otherwise stated, a judgment at law is the pronouncement thereof at the conclusion of the trial, Simpson v. Boykin, 118 Miss. 701, 718, 79 So. 852. The entry of the judgment is a clerical or ministerial act, to be performed by the clerk, and is not the judicial act. Cresswell v. Cresswell, 164 Miss. 871, 879, 140 So. 521, 141 So. 41. This is the rule in all common-law states, save as modified by statute; the rule being further that upon rendition, without entry, the judgment is valid and binding between the parties. See text and numerous cited cases, 34 C.J. pp. 44 et seq. But by statute, both in this state, section 594, Mississippi Code 1930, and in Tennessee, section 8816, Tennessee Code 1932, the plaintiff may take a nonsuit at any time before the jury retires to consider its verdict, and this is true although the court has orally announced its decision and judgment, if nothing further than the oral announcement has been done by the court.
The effect of the nonsuit statutes is to forestall the entry of the judgment theretofore orally pronounced and to require, instead of the pronounced judgment, the entry of the judgment of nonsuit, which, when allowed and entered, divests the judgment first pronounced of any force as res adjudicata and of any conclusive force as between the parties. But it does not displace the judgment first orally announced as being the opinion and decision of the court, that, under the facts as the facts are then presented, there is no liability under the law of the state where the injury occurred. There was no showing made, or attempted to be made, that the material facts as presented in the present suit were in any way different from those presented in the original action.
Since actions in tort are governed by the law of the place where the injury occurred, and it is the province of the courts of that state to declare the law thereof as applied to the facts of a particular case, it follows that when an action has been brought in the proper court of the state where the injury occurred and in the trial thereof, the case has progressed to the point when and where the court has signified its assent to a judgment of nonliability, the case cannot subsequently be entertained in this state through the device of a nonsuit taken in the original action, particularly when it is not shown that any different state of facts are here presented as compared to those in the first suit. If we were to permit such subsequent suit in this state, it would allow our courts to be set up for the review and correction of the previous opinion and decision of the court of the state where the injury occurred, and this court would be acting indirectly as an appellate court, reviewing the correctness of the opinion and decision of a trial court in another state in the same cause of action, when that function properly belongs to the appellate court of the original state. Such a course would not accord with comity, but would be the reverse thereof, and we cannot give our assent to it. Affirmed.