Opinion
No. 36572.
October 27, 1947.
1. DIVORCE.
The statute prescribing that divorce suit must be instituted in county of residence of complainant is mandatory if defendant is a nonresident (Code 1942, sec. 2738).
2. DIVORCE.
The general statute providing that court lacking venue jurisdiction but having jurisdiction of subject matter shall transfer action to proper venue is not applicable in divorce suit, which it governed by special statute providing that divorce bill must be filed in county in which complainant resides if defendant is nonresident (Code 1942, secs. 1441, 2738).
3. DIVORCE.
Proof that parties in divorce action brought in Lee County were residents of Pontotoc County at time of their separation and that defendant still resided there, would entitle defendant to dismissal of bill of complaint, but would not authorize transfer of cause to Pontotoc County on defendant's motion (Code 1942, secs. 1441, 2738).
4. DIVORCE.
An order sustaining motion of defendant in divorce action to have cause transferred to another county on ground of her alleged residence and citizenship there was not appealable (Code 1942, secs. 1441, 2738).
APPEAL from the chancery court of Lee county. HON. WM. H. INZER, Chancellor.
James A. Finley, of Tupelo, for appellant.
The court erred in sustaining the motion to transfer this cause from the chancery court of Lee County to the chancery court of Pontotoc County.
Smith v. Smith, 194 Miss. 431, 12 So.2d 428; May v. May, 158 Miss. 68, 130 So. 52; Lucia v. Lucia, 200 Miss. 520, 27 So.2d 774; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148; Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772.
Byrd P. Mauldin, of Pontotoc, for appellee.
The facts in this case establish without a doubt that at the time of the separation of these parties they were residents of Pontotoc County, where the defendant still resides. Under Section 2738 of the Code of 1942, where both parties are residents of the State, the bill for divorce must be filed in the county in which the defendant resides or may be found at the time, or in the county of the residence of the parties at the time of the separation if the complainant still be a resident of such county when the suit was instituted. The only fact that could possibly lay the venue of this action in Lee County was the fact that the defendant was found in Lee County at the time process was served on her. However, the proof shows that she worked in Lee County and returned to her home each night in Pontotoc County. I do not believe the statute means that suit may be brought in any county in which you might possibly be able to find the defendant at any time. I think it means that if a defendant is temporarily residing away from home so that the process cannot be readily served in that county, then the suit may be filed in the county where the defendant may be found at that time. The motion to transfer the case to Pontotoc County was properly sustained.
Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; Code of 1942, Sec. 2738.
Appellant filed suit for divorce against the appellee in the Chancery Court of Lee County, averring that both parties were adult residents of that County.
Appellee, without answering, filed a motion to transfer the cause to Pontotoc County, on the ground of her alleged residence and citizenship there, which motion was sustained by the Chancellor because of Section 1441, Code 1942. This section provides:
"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."
Proof was heard by the Chancellor on the motion, at the conclusion of which, on conflicting testimony, he held, as he said in his opinion in the record: "The facts in this case establish without a doubt in the mind of this Court that at the time of the separation of these parties they were residents of Pontotoc County where the defendant still resides." In our judgment, the Chancellor here was amply justified by the proof, in so holding. From the decree on the sustaining of the motion, and transfer of the cause to Pontotoc County, appellant brings this case here, and assigns such action of the Chancery Court as the sole error.
This case, on the issue of transfer or not, is controlled by our recent decision, Price v. Price, 202 Miss. 268, 32 So.2d 124. We there held that Section 2738, Code 1942, was mandatory, and there required affirmation of the Chancellor's dismissal of the Bill of Complaint for divorce, since it was not filed in the proper county. We further there announced our opinion that Section 1441, Code 1942, had no application in or to the particular subject of divorce. So, had defendant moved the court to dismiss the original bill, instead of moving to transfer the cause, we would have sustained a decree to that effect. However, the motion was merely to transfer the cause, which was beyond the authority of the court to do, and hence error was committed in ordering the transfer.
We cannot entertain this appeal, however, from the Chancellor's decree, because it is not appealable under the authority of Marquette Cement Mfg. Co. v. New Amsterdam Casualty Co., 174 Miss. 843, 165 So. 615, and the cases therein cited.
Since the decree is not appealable, and we cannot entertain it, we can only dismiss the appeal. Upon receipt of the mandate of this Court, further proceedings in the matter will follow our holding in Price v. Price, supra, which we now re-affirm, if any further progress is to be had in the litigation.
Appeal dismissed.