Opinion
No. 31396.
February 4, 1935. Suggestion of Error Overruled, March 18, 1935.
1. CORPORATIONS.
Change of corporation's domicile from place stated in its charter by stockholders' resolution, as authorized by charter, held matter of internal management not requiring charter amendment, in absence of statutory prohibition (Rev. Code 1880, sections 1028, 1031).
2. CORPORATIONS.
Charter grant of right to stockholders of corporation to change domicile thereof held not violation of statutes or Constitution nor inimical to public policy or private right, in view of statute authorizing service on secretary of state of process against corporations failing to file names of agents on whom process may be served (Rev. Code 1880, section 1028; Code 1930, section 4140).
3. ATTACHMENT.
Chancery court of county from which domestic corporation, garnished as debtor of foreign bank in attachment suit against latter, moved its property, office, and place of stockholders' meeting, as permitted by its charter, before issuance of process for it to sheriff of such county, had no territorial jurisdiction of such bank or garnishee (Rev. Code 1880, section 1028; Code 1930, section 495).
4. APPEAL AND ERROR.
Plaintiff, not raising point in trial court that defendant entered appearance for all purposes by filing general demurrer to bill and plea to jurisdiction or motion to dismiss for want of jurisdiction, nor presenting question in Supreme Court on appeal from decree or dismissal until he filed reply brief, waived point.
5. ATTACHMENT.
Chancery court of county in which attachment suit was filed against domestic bank, which bill alleged was domiciled in another county, and foreign bank, to which garnished domestic corporation, domiciled in another county, was alleged to be indebted, to recover amount of check on ground of banks' negligence in collection thereof, had no territorial jurisdiction of domestic bank, between which and garnishee there was neither privity nor connection (Code 1930, sections 173, 174).
6. ABATEMENT AND REVIVAL.
Pleas in chancery having been abolished and pleas in bar and abatement and demurrers now being permitted as part of answer in equity suit, order of pleading therein is within chancery court's jurisdiction (Code 1930, section 379).
APPEAL from the chancery court of Holmes county.
HON. M.B. MONTGOMERY, Chancellor.
Suit by Frank A. Estes against the Bank of Walnut Grove and others. From a decree of dismissal, plaintiff appeals. Affirmed.
O.B. Triplett, Jr., of Forest, and Wm. I. McKay, of Vicksburg, for appellant.
The precise position of the appellant is, that, for the purpose of his suit, the venue thereof was in Holmes county, that is, that the domicile of the Tchula Cooperative Store, so far as appellant could be affected thereby, was in that county, and that the lower court erred in holding that the domicile had been changed to Washington county with any effect on appellant.
The charter must be strictly construed against appellees.
14a C.J. 260-1; Gaines v. Coates, 51 Miss. 335.
The power claimed is in derogation of common right. The rule of strict construction also applies where a corporation claims under its charter any other power, exemption, or other privilege which is in derogation of common right, and thus infringes upon the rights either of the public or of particular individuals.
14a C.J. 263-4.
The claimed power is controlled by law, not by charter.
Chapter 38, Code of 1880, sections 1028 and 1030; Laws of 1884,
The corporation cannot change its domicile.
14 C.J. 340; 1 Thompson on Corporations, page 599.
The minutes do not show change of domicile.
The appellees are estopped to deny the charter domicile.
14 C.J., pages 340-1.
Something is said in the motions to quash to the effect that publication of notice to the Hibernia Bank Trust Company could not be made until service of process on the Tchula Cooperative Store. There is no merit whatever in this ground.
Section 177, Code of 1930.
By filing its general demurrer and obtaining the continuance of the cause the appellee, Bank of Walnut Grove, waived any question of the venue of the suit so far as it was concerned.
67 C.J., pages 92-93, secs. 148-149, and page 131, sec. 214; Gatlett v. Drummond, 113 Miss. 450, 74 So. 323.
The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any nonresident . . . debtor, against any such debtor and persons in this state who . . . are indebted to such nonresident . . . debtor.
Section 173, Code of 1930.
Appellant's suit is based upon a demand founded upon an indebtedness against the Hibernia Bank, a nonresident debtor, and the Tchula Cooperative Store is a person in this state who is indebted to the nonresident debtor, the Hibernia Bank.
Smith v. Mulhern, 57 Miss. 591; Baum v. Burns, 66 Miss. 124.
For the purpose of venue the residence or domicile of a corporation is the place designated in its articles of incorporation or charter as the place where the corporation is to be located.
Woods Gold Mining Co. v. Royster, 46 Colo. 191, 103 P. 291; St. Charles Sov., etc., v. Thompson, etc., Armory Co., 210 S.W. 868; State v. District Court, 191 Ia. 244, 182 N.W. 211; Rossie Iron Works v. Westbrooks, 59 Hun. 345, 13 N.Y.S. 141; Western Travelers Acc. Asso. v. Taylor, 62 Nebr. 785, 87 N.W. 950; 126 Misc. 351, 214 N.Y.S. 311; Section 4140, Code of 1930; Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677.
In their brief appellees contend that the publication for the Hibernia Bank could not be made until after the levy of the writ of attachment. This is untenable.
Sections 174 and 177, Code of 1930.
If, at the time of the attachment, any of the indebtedness of the Tchula Cooperative Store owned by the Hibernia Bank had matured, such indebtedness was clearly attachable, however evidenced.
28 C.J. 159; Griffith's Chancery Practice, sections 400, 403 and 407; Sections 173 and 178, Code of 1930; Insurance Co. v. Robertson, 126 Miss. 387; Mobley v. Hibernia Bank, 140 So. 251.
W.T. Weir, of Walnut Grove, for appellee, Bank of Walnut Grove.
If the court did not have jurisdiction to try the case against the Tchula Cooperative Stores then it could not by any stretch of the imagination have jurisdiction over the Bank of Walnut Grove which is admittedly a corporation having its domicile in Leake county and has no domicile of any kind or property rights in Holmes county.
Section 363, Code of 1930.
The court in Holmes county had no jurisdiction over the Bank of Walnut Grove.
Griffith's Chancery Practice, section 155.
Green, Green Jackson, of Jackson, and Dufour, St. Paul, Levy Miceli, of New Orleans, Louisiana, for appellees.
There was no conformity with precedent statutory requirements.
Section 174, Code of 1930; 6 C.J. 30; Rankin v. Dulaney, 43 Miss. 197; Hasey v. Ferriere, 1 S. M. 664; Cantrelle v. Letwinger, 44 Miss. 440; Delta, etc., Ins. Co. v. Bank, 102 So. 848, 137 Miss. 855; Scruggs v. Blair, 44 Miss. 406.
To give validity and conclusive effect to a judgment in a proceeding in rem the thing must be subject to the control of the court and within its territorial jurisdiction.
13 Encyc. Pl. Pr., 186-194; Hine v. New Haven, 40 Conn. 478; Brown v. Board, 50 Miss. 481; Campbell v. Triplett, 74 Miss. 363, 20 So. 844.
There was no property in Holmes county at any time. The sole inter-relation between Hibernia Bank and the store consisted of negotiable notes whose actual situs was with the Louisiana judicial liquidation, or in Washington with the Reconstruction Finance Corporation.
Smith v. Mulhern, 57 Miss. 491; Baum v. Burns, 66 Miss. 124, 5 So. 697; 6 C.J. 956; Werner v. Sheffield, 42 So. 876, 89 Miss. 12, 18; 28 C.J. 192-3; Advance Lbr. Co. v. Bank, 66 Miss. 419, 38 So. 313; Delta, etc., Co. v. Interstate, etc., 74 So. 420, 113 Miss. 542.
The attachment was not levied until June, 1933. The process was returnable to the second Monday in April, a prior date, then past.
The Tchula Cooperative Store is nonresident of Holmes county, domiciled at Leland, Washington county, with no property in Holmes county.
19 C.J. 392; Hairston v. Hairston, 27 Miss. 704; Weaver v. Norwood, 59 Miss. 678; Morgan v. Nunes, 54 Miss. 308; Plummer-Lewis Co. v. Francher, 71 So. 907-8, 111 Miss. 656; Tchula Commercial Co. v. Jackson, 111 So. 874-80, 147 Miss. 296; Fireman's Fund Ins. Co. v. Cole, 152 So. 872; 19 C.J. 397 and 400; 14 C.J. 338.
The charter has fixed the domicile, not at Tchula, but "at Tchula or such other place" as the majority of the stockholders in value may determine.
Werner v. Sheffield, 42 So. 876, 89 Miss. 12, 18; 14 C.J., sec. 417; Inter-Southern Life Ins. Co. v. Milliken, 149 Ky. 516, 149 S.W. 875, L.R.A. 1917A 450.
The charter constitutes a declaration of right to have a domicile by choice, and was ample authority for that thus done.
Bank v. Grigsby, 155 So. 685; Middleton v. Mercantile Co., 117 Miss. 134, 77 So. 956.
No jurisdiction in attachment obtainable. Exclusive possession validly vested in Louisiana liquidation proceedings.
Slattery v. Renoudet Lbr. Co., 125 Miss. 229, 87 So. 888; Windsor v. McVeigh, 93 U.S. 279, 23 L.Ed. 916; S.C. 8, Rose's Notes on U.S. Repts. M. 957; McHenry v. State, 91 Miss. 562, 44 So. 831; Ex parte Burden, 92 Miss. 14, 27, 45 So. 1.
The jurisdiction, in rem, does not attach until the res is in the possession of the court within the county.
Taylor v. Carryl, 20 How. 599, 15 L.Ed. 1034; Pennoyer v. Neff, 95 U.S. 727, 24 L.Ed. 565.
Proceedings in rem are not exempt from the operation of the rule which makes service of notice in some form essential to the exercise of jurisdiction, and seizure without service is a trespass.
The Mary, 9 Cr. 126, 142, 146, opinion of Marshall, C.J.; New Lamp Chimney Co. v. Cooper Co., 91 U.S. 656; Cooley Cons. Lim. (2 Ed.) 498-9; Wells on Juris., sec. 88; Waples Proc. In Rem., secs. 588, 570 et seq.; Woodruff v. Taylor, 20 Vt. 65; Denning v. Corwin, 11 Wend. 647; Freeman v. Thompson, 53 Mo. 196; Fencher v. Keyl, 48 Ohio St. 366; Sentzler v. Thayer, 10 Colo. 64; Door v. Tohr, 82 Vt. 359; In re Empire City Bank, 18 N.Y. 199; Bradstreet v. Insurance Co., 3 Sum. (608, per Mr. Justice Story); Schlitz v. Reonitz, 86 Wis. 40; Hassell v. Wilcox, 130 U.S. 504, 33 L.Ed. 1001; Hammock v. Farmers' Loan Trust Co., 105 U.S. 77, 26 L.Ed. 1111; Kline v. Burket Constr. Co., 260 U.S. 320, 67 L.Ed. 226, 230; Farmers' Loan Trust Co. v. Elev. R. Co., 177 U.S. 51, 44 L.Ed. 667; Palmer v. Texas, 212 U.S. 118, 53 L.Ed. 435; Ex parte Baldwin, 78 L.Ed. 677; Theobald v. Deslonde, 46 So. 712, 93 Miss. 208; Murray v. State, 213 U.S. 174, 53 L.Ed. 752; 23 C.J. 1059.
Evidence of indebtedness being negotiable instruments is not subject to attachment.
28 C.J. 154; McKinney v. Kuhn, 39 Miss. 188; Cocke v. Brewer, 58 Miss. 778, 9 So. 823; Klein v. French, 57 Miss. 662; Speed v. Kelly, 59 Miss. 47.
Reconstruction Finance Corporation, pledgee of said negotiable instrument, nonresident of Mississippi, an indispensable party, prevented attachment jurisdiction attaching.
Delta, etc., Co. v. Bank, 102 So. 846, 137 Miss. 856; Cocke v. Brewer, 68 Miss. 778, 9 So. 823; Delta, etc., Co. v. Interstate Fire Ins. Co., 113 Miss. 542, 74 So. 420; Lumber Co. v. Laurel National Bank, 86 Miss. 419, 38 So. 313; Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876; Federal Reserve Bank v. Malloy, 264 U.S. 160, 68 L.Ed. 617, 31 A.L.R. 1261; 10 C.J. 133, 191; 4 R.C.L., sec. 230, page 764; 2 C.J., sec. 274, page 633; Pearl River County v. Merchants Bank Trust Co., 151 So. 756; Peoples Gin Co. v. Canal Bank Trust Co., 144 So. 959, 168 Miss. 630.
Liquidation having been initiated May 20, 1933, pursuant to Louisiana statutes vouchsafing equal distribution to all claimants, with actual possession of the res therein by Louisiana court in liquidation and Reconstruction Finance Corporation, the full faith and credit clause of the Federal Constitution prevented attachment seeking therefrom to divest possession of the res.
1 Louisiana Gen. Statutes, sec. 556 et seq.; Hartford Acc. Ind. Co. v. Delta Pine Land Co., 78 L.Ed. 767; Fauntleroy v. Lum, 210 U.S. 230, 52 L.Ed. 1039; Relfe v. Rundle, 103 U.S. 222, 26 L.Ed. 337.
This obligation for equal distribution upon insolvency was integrated into every contract by Louisiana law and must be respected in Mississippi.
Farmers, etc., Bank v. Federal Reserve Bank, 262 U.S. 660, 67 L.Ed. 1164; Kinsler v. Casualty Co. of America, 103 Neb. 382; Bockover v. Life Assoc., 77 Va. 85; Relfe v. Rundle, 13 Otto 222; Durward v. Jewett, 15 So. 386; Taylor v. Life Assn. of America, 13 Fed. 493; Faley v. Talbee, 55 Fed. 892; Smith v. Taggert, 87 Fed. 94; Ware v. Supreme Order, 28 A. 1041; Baldwin v. Hosmer, 59 N.Y. 432; Parsons v. Ins. Co., 31 Fed. 305; Fry v. Charter Oak Life Ins. Co., 31 Fed. 197; Sneeden v. Marion, 64 F.2d 721; Noble State Bank v. Haskell, 219 U.S. 113, 55 L.Ed. 117; State v. Nebraska State Bank, 247 N.W. 31; Milner v. Gibson, 61 S.W.2d 273; Nebbia v. New York, 78 L.Ed. 563; Home Bldg. L. Assoc. v. Blaisdell, 78 L.Ed. 255; Bankers Trust Co. v. Russell, 249 N.Y. 27; Gibbes v. Zimmerman, 78 L.Ed. 191; 86 A.L.R. 1552; Article 31, Michigan Law Review, 1054; 86 A.L.R. 1556; Tiaco v. Forbes, 228 U.S. 549; U.S. v. Heinzen, 206 U.S. 370, 51 L.Ed. 1098; Mitchell v. Clark, 110 U.S. 633, 28 L.Ed. 279; Prize cases, 2 Black, 653, 17 L.Ed. 459.
It is true that in the order recited, Tatum v. Hibernia Bank Trust Company, that the Tchula Cooperative Store, in that suit, whereto it was in no way a party, is said to be in Holmes county, but the Tchula Cooperative Store, when brought into court by service showed what the true facts were, and a mistake upon the part of those proceedings in that cause, to which it was in no way a party, may not in any way prejudice its rights, estoppels, even if this so be, affecting only parties to the suit.
21 C.J. 1067; Title of Judgment XIV (b), Key Number 678, Mississippi Digest, inter alia; Lipscomb v. Postel, 38 Miss. 476, 77 Am. Dec. 651.
The jurisdiction of the bank commission is exclusive and not subject to interference by the courts.
Koch v. Missouri-Lincoln Trust Co., 181 S.W. 44; Abbott, Com'r of Banking v. Morris, Judge, 101 W. Va. 127, 132 S.E. 372; Graughwell v. Mousam River Trust Co., 113 Me. 531, 95 A. 221; Ulmer v. Loan Building Assn., 93 Me. 302, 45 A. 32; Christiansen v. Bank, 150 So. 375; Hiern v. Interstate Trust Banking Co., 178 La. 998, 152 So. 685.
The property thus being taken possession of by the liquidators was in custodia legis.
Anderson v. Bank Examiners, 112 Miss. 476, 73 So. 286; Sunflower County v. Bank of Drew, 136 Miss. 191, 101 So. 192, 193; Love v. King, 166 Miss. 776, 145 So. 619, 620; Anderson v. Love, 151 So. 370, 168 Miss. 352; Love v. Sunflower County, 144 So. 856, 165 Miss. 507; Clark v. Williard, 78 L.Ed. 748; Yarborough v. Thompson, 3 S. M. 295.
The attaching creditor "does not acquire a clear and full lien upon the specific property in the garnishee's possession, but only such a lien as gives him the right to hold the garnishee personally liable for it, or its value."
Drake, Attachm., sec. 453; Booth v. Gish, 75 Iowa, 454; Sargent County v. State, 182 N.W. 275; Eddy v. O'Hara, 132 Mass. 61; Becker v. I.C.R.R. Co., 250 Ill. 43, 35 L.R.A. (N.S.) 1154, 95 N.E. 43; Searls v. Smith Grain Co., 80 Miss. 688, 32 So. 287; Farmers Loan Trust Co. v. Minnesota, 280 U.S. 208, 74 L.Ed. 373; Beidler v. South Carolina, 282 U.S. 1, 75 L.Ed. 131; Baldwin v. Missouri, 281 U.S. 586, 74 L.Ed. 1056, 72 A.L.R. 1303; First National Bank v. Maine, 284 U.S. 312, 76 L.Ed. 313; Burnett v. Brooks, 288 U.S. 378, 77 L.Ed. 845.
Argued orally by Garner Green, for appellant.
On March 1, 1933, Frank A. Estes, appellant, filed an attachment suit against the Bank of Walnut Grove, a banking corporation domiciled and doing business in Leake county, Mississippi, the Hibernia Bank Trust Company, a banking corporation domiciled in New Orleans, Louisiana, and, as garnishee defendant, the Tchula Co-operative Store (hereafter called the Tchula Store), a corporation alleged to have been domiciled in Holmes county, Mississippi. It was alleged that the Tchula Store was indebted to the Hibernia Bank Trust Company, and that the Bank of Walnut Grove and the Hibernia Bank Trust Company had been negligent in the collection of a certain check, and that each of them was jointly and severally liable to the appellant, Estes, for the amount of said check. During the month of March, 1933, process by publication in a newspaper was had for the Hibernia Bank Trust Company, and process was issued for the Tchula Store directed to the sheriff of Holmes county, whose return thereon showed that it could not be found in Holmes county, nor did it have any agent upon whom process could be served therein. Subsequently, in June, 1933, process was served upon Walker Wood, secretary of state, by the sheriff of Hinds county, as the agent of the Tchula Store.
The Hibernia Bank Trust Company and the Tchula Store filed separate motions to quash the attachment and dismiss the bill as to each of them; the bank appearing by its receivers appointed in the parish of Orleans, state of Louisiana. They each alleged that they appeared merely for the purpose of making their motions to quash. In May, 1933, the Bank of Walnut Grove filed a general demurrer to the bill, and thereupon the cause was continued. In January, 1934, the Bank of Walnut Grove filed its motion to dismiss the cause for lack of jurisdiction on the ground that it was not domiciled in Holmes county and never had been.
Upon the hearing the several motions to quash were all sustained, and the bill was dismissed as to each of the defendants. Estes appeals here.
The facts of the motions not in dispute are that the Tchula Store was granted a charter on November 3, 1888, under chapter 38, section 1027 et seq. Revised Code of 1880, which recites, among other things, the following: "The domicile of said company shall be at Tchula, Holmes county, Mississippi, or at such other place as the majority of the stockholders in value may determine."
The minute book of the corporation showed the following action by the stockholders on January 1, 1916: "It was resolved by the board of directors and stockholders unanimously that the annual meeting of the stockholders and the annual meeting of the board of directors shall be changed from the present place and time of meeting to meeting at the office of the company in the Planters Bank Building in Clarksdale, Mississippi, on the first Monday in January of each year until further order, and this shall be hereafter the regular meeting place of said stockholders and board of directors. And said resolution was then and there put to a vote by the president and unanimously adopted and carried."
Subsequently there appears the following, which seems to have been adopted by all of the stockholders of the corporation:
"The regular annual meeting of the stockholders of this corporation shall be held at the general office of the corporation in the city of Clarksdale, Mississippi, on the first Saturday of February in each year;" thereafter, the following resolution was passed:
"Be it resolved, that the annual meeting of the stockholders and directors shall hereafter be held in the city of Greenville, county of Washington, state of Mississippi, at the office of the company there established, and that the bylaws of the corporation be accordingly amended."
On February 3, 1930, it was resolved that the stockholders' meeting be held in the office of the company at Leland, Mississippi, and not at Greenville.
The motions alleged that the Tchula Store had not done any business in Holmes county, Mississippi, for many years, but had been domiciled in Washington county, where it operated, and is now operating, large planting interests, and that it was not subject to attachment in Holmes county; that it had its office in Leland in charge of an officer of the corporation who was its vice-president and manager.
There was introduced in evidence a certificate of the secretary of state that no amendment of the charter had been filed in his office, and that no agent had been named as required by law.
There was no allegation in the bill that the Hibernia Bank Trust Company was doing business in the state of Mississippi. It is, and was, a nonresident banking corporation. Neither was there an allegation in the bill attempting to lodge jurisdiction in the chancery court of Holmes county, save and except the allegation that the domicile of the Tchula Store was in Holmes county. If the domicile of the Tchula Store was not in Holmes county, then, as to the Hibernia Bank Trust Company and the Tchula Store, the action of the court below in quashing the attachment and dismissing the bill was correct.
It is the substantial contention of the appellant that by his bill the court acquired jurisdiction of all the parties hereto, because the Tchula Store was domiciled in Holmes county; the charter having fixed that county as its domicile. He asserts that the stockholders were without the power to change its domicile, and, if they had the power, they had not done so.
By chapter 38, section 1028, Rev. Code 1880, corporations were granted charters, upon complying with certain conditions, when approved by the governor upon the advice of the attorney-general and attested by the secretary of state, but this section does not require a domicile to be named in the charter. Section 1031 thereof defines the powers of the corporations so created, but in no way undertakes to regulate or control the stockholders as to the fixing of a domicile.
We think, therefore, that the language of this charter relative to its domicile was not prohibited by any statute, and that the grant therein to the stockholders to change its domicile was a matter of internal management which did not require an amendment of the charter.
It will be observed that the domicile was not absolutely fixed by the charter, but was fixed alternatively at Tchula or at such other place as the majority of the stockholders in value should determine. The right granted by the state to change the domicile is the same as if a statute had been passed to that effect by the Legislature. Indeed, in the early days of the legislative history of the state, charters were granted by legislative enactment. The grant here under consideration in no wise violates the statutes or Constitution of this state.
Section 11, chapter 90, Laws of 1928, section 4140, Code of 1930, provides that process may be served upon the secretary of state, and requires that all corporations name and file with the secretary of state an agent upon whom process may be served, and, if the corporation fails to name and file such agent, the secretary of state is regarded as the agent so that no great inconvenience to the public is occasioned by the grant. This grant or right to change the domicile is not inimical to public policy or private right.
In 14 C.J., p. 339, we find this statement: "Where the place of the chief office of a corporation is not designated by its charter, vote of its stockholders, or resolution of its directors, it is where its stockholders and directors usually meet, where it elects its officers, and conducts its financial operations."
But here the right to fix another domicile than Tchula is expressly granted in the charter which, as we have seen, is equivalent to a statute to that effect.
In 14 C.J., section 417, we find the following language: "It cannot change such domicile or resident at will, but only as authorized by statute, by authorized corporate action, and by complying substantially with the requirements of the statute. If, however, its domicile or residence within the state is not thus fixed by law, and in the absence of statutory prohibition it may at any time lawfully change the same to another place within the state. The general rule that a legal domicile or residence once established remains until a new one is acquired, and that a purpose to change such residence, unaccompanied by actual removal or change of abode, does not constitute a change of domicile, is applicable to corporations."
In the case at bar, there being no property in Holmes county subject to the garnishment writ — the equivalent of attachment — the writ must stand upon the jurisdiction of the court of the garnishee, the Tchula Store, which had moved its property, its office, and its place of meeting of the stockholders to another county, as permitted by its charter. It was no longer a resident of Holmes county. It had exercised the power granted by its charter and had fixed its domicile in Washington county. It appeared that in one of the resolutions all the stockholders voted for a change of domicile, which was effective and effectual to remove the corporation from Holmes county.
It therefore follows that there was no territorial jurisdiction of the Hibernia Bank Trust Company, and the Tchula Store, the garnishee, in Holmes county, and the court below so held. Section 495, Code of 1930.
Relative to the Bank of Walnut Grove, the appellant contends that, because said bank filed a demurrer, and later a plea to the jurisdiction, or a motion to dismiss for want of jurisdiction, it entered its appearance for all purposes, and cites 67 C.J. 131, section 214, and Catlett v. Drummond, 113 Miss. 450, 74 So. 323, in support thereof.
It has been held that filing a general demurrer, before challenging the venue, constitutes a general appearance and a waiver of the right thereafter to file a dilatory plea. Schirling v. Scites, 41 Miss. 644, and Cole v. Johnson, 53 Miss. 94.
The complete answer, in our opinion, is that this point was not raised in the lower court at all. The general demurrer was ignored by all the parties. This point was not raised by the appellant in the court below, nor in this court, until he filed his reply brief here, so far as the record discloses. The case was heard as though the demurrer was not in existence; therefore appellant waived the point.
The venue in Holmes county and the jurisdiction of the court were based upon the allegation that the Tchula Store was a debtor of the Hibernia Bank Trust Company, a foreign corporation, and the remedy sought as to the Hibernia Bank Trust Company and the Tchula Store was by attachment in chancery. Sections 173 and 174, Code of 1930.
The bill alleged, on its face, that the Tchula Store, the resident codefendant, was domiciled in Holmes county. The action as to the Bank of Walnut Grove was a suit at law for negligence. There was neither privity nor connection between the Tchula Store and the Bank of Walnut Grove. The latter was alleged to be doing business and domiciled in Leake county, Mississippi. No property or effects were levied on, nor was there any defendant domiciled or residing in Holmes county.
Another answer is that, by reason of section 379, Code of 1930, pleas in chancery are abolished, and all pleas in bar and in abatement and demurrers are now permitted to be a part of the answer, so that the order of pleading in the chancery court is vested, by statute, in the discretion of the chancery court. See Griffith's Chancery Practice, section 245.
In our opinion, there is no reversible error in the action of the court below.
Affirmed.