Opinion
No. 30912.
February 26, 1934. Suggestion of Error Overruled April 23, 1934.
1. APPEARANCE.
Circuit court has general jurisdiction of suit on fire policy, and filing of plea to its jurisdiction gives it jurisdiction of insurer's person (Code 1930, section 497).
2. INSURANCE.
Statute providing that actions against insurance companies "may" be brought in specified counties requires them to be brought there (Code 1930, section 497).
3. INSURANCE.
In action against foreign insurance corporation on policy, where service is had upon insurance commissioner, suit must be brought in county where loss occurred or plaintiff resides (Code 1930, section 497).
4. INSURANCE.
Jurisdiction of foreign insurance company cannot be obtained by service on former agent who is not in fact agent of company when process is served (Code 1930, sections 497, 5165).
5. INSURANCE.
Statute relating to obtaining jurisdiction of person of foreign corporation by service on agent held not to authorize suit against foreign insurance company in county other than those specified by statute controlling venue of such suits (Code 1930, sections 497, 4167).
6. PLEADING.
That foreign insurance company went to trial on merits did not waive previously rejected plea to jurisdiction (Code 1930, section 532).
APPEAL from Circuit Court of Lee County.
Stovall Stovall, of Okolona, and Watkins Eager, of Jackson, for appellant.
The county of Lee county did not have territorial jurisdiction of the case at bar because the action was not brought in the county where the loss occurred or in the county in which plaintiff resided.
Sec. 497, Miss. 1930 Code; 59 C.J. 992, par. 593; Hamner v. Lbr. Co., 100 Miss. 349; Dean v. Brannon, 104 So. 173, 139 Miss. 312; Hercules Powder Co. v. Tyrone, 124 So. 74, 155 Miss. 75; Sandford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887.
Even if this suit could have been brought in a county where service of process was had on an agent of appellant company, still the county court of Lee county, Mississippi, did not have territorial jurisdiction of this cause because process was not had on an agent of the company duly appointed to receive process under our statutes.
Secs. 4167, 4177 and 5165, chap. 177, Miss. Code of 1930; National Surety Co. v. Board of Supervisors, 120 Miss. 706, 83 So. 8; F. C. Co. v. Cross, 127 Miss. 31, 89 So. 789; Great So. Life Ins. Co. v. Gomillion, 145 Miss. 314, 110 So. 770; Cont. Ins. Co. v. Gillmer, 146 Miss. 22, 111 So. 741.
The county court of Lee county never having had territorial jurisdiction of the action, if the action should have been brought in county where plaintiff resided or loss occurred, the appellant did not, after a hearing upon a plea in abatement, and a judgment of respondeat ouster, waive any rights to present this question of territorial jurisdiction for review by this court by filing a plea of general issue and going to trial upon the merits.
Central Trust Co. v. McGeorge, 151 U.S. 130, 38 L.Ed. 99; Burnrite Coal Co. v. Riggs, 274 U.S. 206, 71 L.Ed. 985; Secs. 532, 544 and 600, Miss. Code of 1930; Christian v. O'Neal, 46 Miss. 669; Y. M.V.R. Co. v. McNeely, 121 Miss. 803, 83 So. 815; Bauer v. Roth, 4 Rawls 83; Jackson v. Lemler, 83 Miss. 37; McLeod, Exec. v. Shelton, 42 Miss. 517; Cook v. Pitts, 114 Miss. 39, 74 So. 777; Goodpaster v. C.M. G.R. Co., 240 Ill. App. 267; 1 C.J. 44, par. 36; Barry v. Wachosky, 77 N.W. 1080; Equitable Mortgage Co. v. Weddington, 21 S.W. 576.
The common law rule is well established that when a plea of the venue is filed at the proper time and the same is overruled there is no waiver of the issues therein presented by a subsequent plea in bar. This rule is not changed merely because the test of the proper venue might be held to be whether a duly appointed agent of the appellant company was served with process in the county. Where, as here, no such agent was ever in Lee county and said county never had or could have territorial jurisdiction the question continued to be one of venue and did not shift merely to a question of notice. Therefore the right to present the issue of venue upon appeal was not waived by the subsequent plea in bar.
Camden Fire Ins. Co. v. Delaney Moss. Co., 118 So. 535; Fisher v. Ins. Co., 112 Miss. 20, 72 So. 846; Solomon v. Tupelo Compress Co., 72 Miss. 822; M. R.C.R. Co. v. Glober, 29 So. 89, 78 Miss. 467; Arnett v. C.C. R.F. Smith, Inc., 165 Miss. 53, 145 So. 638; Turner v. Williams, 162 Miss. 258, 139 So. 606; Batson Hatten Lbr. Co. v. McDowell, 159 Miss. 322, 131 So. 880; Miss. C.R. Co. v. Calhoun, 105 So. 519, 140 Miss. 289; Sec. 2999, Miss. Code of 1930; Nat. City Bank v. Stupp Bros. Co., 147 Miss. 747, 113 So. 340; McCoy v. Watson, 122 So. 368; Harkness v. Hyde, 98 U.S. 467; So. Pac. v. Denton, 146 U.S. 202, 36 L.Ed. 943; State v. Superior Court, 193 P. 676. Geo. T. Chas. S. Mitchell, of Tupelo, for appellee.
The question of proper venue in this cause is to be determined by section 497, Mississippi Code of 1930.
It is clear that the statute in question with reference to foreign fire insurance corporations provides four different venues in causes of action against such corporations, either of which the plaintiff may elect to avail himself of. He may file his cause of action in any county in which a loss may occur; or he may file his cause of action in any county where the principal place of business of such corporation may be; or where the insurance corporation is a foreign corporation, he may file his cause of action in any county where service of process may be had on an agent of such corporation; or, he may file his cause of action in any county where the loss occurred, or where the plaintiff resides if the process is served upon the insurance commissioner of the state of Mississippi, and him alone.
In the case now before the court, service of process was had upon the insurance commissioner and also service of process was had in Lee county upon Mrs. Annette Wicks, who, at the time of the execution of the contracts of insurance involved in these cases, was president of Wicks Insurance Agency, domiciled in Chickasaw county, and who wrote the contracts of insurance involved. This service of process was in accord with section 4167, Mississippi Code of 1930.
While jurisdiction of the subject-matter of a cause of action cannot be waived, the jurisdiction of the person which is obtained through process or appearance, and the territorial jurisdiction, commonly called venue, can be waived because these requirements do not go to the fundamental jurisdiction of a court but relate only to the question of exercising powers derived from, and inherent in, a jurisdiction already vested.
Wollf et al. v. McGaugh, 57 So. 775; 27 R.C.L. 783, sec. 6; Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 211, 71 L.Ed. 1005; Central Trust Co. v. McGeorge, 151 U.S. 129, 38 L.Ed. 98; Creigh v. Westinghouse C.K. Co., 214 U.S. 249, 53 L.Ed. 984.
In transitory causes of action, jurisdiction of a court is complete when the court has jurisdiction of the subject-matter (which is conferred upon it by the constitution, the law, or the statutes), and jurisdiction of the person (which may be acquired by the service of process, waiver, or voluntary appearance).
We confidently assert that all questions going to the jurisdiction of the person of a litigant or to the territorial jurisdiction, or venue, may be waived either expressly or by implication.
There can be no possible question but that the court was vested with the jurisdiction of the subject-matter and there can be no question but that the court acquired jurisdiction of the persons of these appellants; or, if any defect existed therein, same was waived by appellants' making an appearance in this cause in the court below.
Camden Fire Ins. Ass'n v. Delaney-Moss Co., 118 So. 537; Fisher v. Pacific Mutual Life Ins. Co., 72 So. 846; Corbett v. Physicians Casualty Ass'n, 16 L.R.A. (N.S.) 177; Christian v. O'Neal et al., 46 Miss. 675.
Argued orally by W.H. Watkins, for appellant, and by Geo. T. Mitchell, for appellee.
Copy of agreed statement of facts:
"It is hereby agreed between Geo. T. Chas. S. Mitchell, counsel for the plaintiff, Mrs. Lallie D. Cole, and Stovall Stovall, counsel for the defendant in the above styled suit that for the purpose of the hearing on defendant's plea in abatement to the declaration of plaintiff and plaintiff's replication to said plea that the following facts are agreed upon, to-wit:
"That the loss sued for by the plaintiff, Mrs. Lallie D. Cole, under the alleged fire insurance contract made exhibit A to her declaration occurred in the Second Judicial District of Chickasaw county, Mississippi, and did not occur in the county of Lee, Mississippi; that said defendant insurance company is a foreign corporation, domiciled at the place set out in said plea in abatement; that before and at the time of the commencement of said suit and at this time, the plaintiff, Mrs. Lallie D. Cole does and did not reside in the county of Lee, Mississippi; that the contract of insurance made exhibit A to the declaration in this suit was written by Wicks Insurance Agency, which has its office and place of business at Okolona, Chickasaw county, Mississippi, and was written at a time when said Wicks Insurance Agency was the duly authorized agent of defendant to write fire insurance contracts; that Mrs. Annette Wicks was the president of said Wicks Insurance Agency and authorized to sign said contract of insurance, but that at the time of service of process upon Mrs. Annette Wicks by the sheriff of Lee county on the 12th day of August, 1932, she was not a duly appointed and authorized agent of said insurance company to execute contracts of fire insurance nor was she appointed by it as agent for receipt of process as provided by section 5165, paragraph 4, Code of 1930. It is further agreed that at the time of service of process upon Mrs. Annette Wicks, she and R.A. Dean conducted a partnership known as Dean Insurance Company at Okolona, Chickasaw county, Mississippi, and that said R.A. Dean represented the defendant in this suit as agent to write fire insurance contracts for it but that said Mrs. Annette Wicks was not authorized by said defendant company to execute on its behalf contracts of fire insurance. Policies that are written by said Dean Insurance Agency are signed `Dean Insurance Agency by R.A. Dean.'
"Witness our signatures this the 15th day of September, 1932.
"GEO. T. CHAS. S. MITCHELL, "By GEO. T. MITCHELL, "Attorneys for plaintiff.
"STOVALL STOVALL, "By R.C. STOVALL, "Attorneys for defendant."
This is an appeal from a judgment for the appellee on a fire insurance policy issued to her by the appellant.
The only error assigned is the overruling, by the court below, of the appellant's plea to the court's territorial jurisdiction. The issue presented by this plea was tried without a jury on an agreed statement of facts.
The court below has general jurisdiction of suits of this character, and, by the filing of a plea to its jurisdiction, obtained jurisdiction of the appellant's person.
Whether the venue, and consequently the territorial jurisdiction, was in Lee county, is governed by section 497, Code 1930, reading as follows: "Venue — actions against insurance companies. — Actions against insurance companies may be brought in any county in which a loss may occur, or, if on a life policy, in the county in which the beneficiary resides, and process may be sent to any county, to be served as directed by law; and such actions may also be brought in the county where the principal place of business of such corporation or company may be, and in case of a foreign corporation or company, may be brought in the county where service of process may be had on an agent of such corporation or company or service of process in any suit or action, or any other legal process, may be served upon the insurance commissioner of the state of Mississippi, and such notice will confer jurisdiction on any court in any county in the state where the suit is filed, provided the suit is brought in the county where the loss occurred, or in the county in which the plaintiff resides."
The appellee says that by the use of the word "may" in fixing the several venues, the statute merely permits, and does not require, suits against insurance companies to be brought in the counties designated by the statute. To this we cannot accede, but must hold that, by designating the counties in which suits may be brought, the statute thereby excluded other counties therefrom. The appellee further says that the provision of the statute as to the county in which the suit must be brought applies only when process is served on the insurance commissioner. The appellee is correct as to the effect of the statute when service is had on the insurance commissioner, and it will not be necessary for us to decide whether the appellant or the appellee is right when service is had on an agent of an insurance company.
One of the appellant's contentions is that suits against foreign insurance companies must be brought in the county where the loss occurred, or in the county in which the plaintiff resides, and that, when this is done, process may be served on an agent of the company appointed to receive service of process, or on the insurance commissioner. According to the appellant, to come within the statute, Mrs. Wicks must (1) have been, in fact, an agent of the appellant when the process was served on her, and (2) have been duly appointed by the appellant to accept service of process for it under section 5165, Code 1930. We agree with the first of these contentions, and since the appellee admits that Mrs. Wicks was not an agent of the appellant when the process was served on her, it will not be necessary for us to determine the second.
But the appellee says that, because Mrs. Wicks represented the appellant at the time the insurance policy was issued, service of process on her was authorized by section 4167, Code 1930. That section relates only to the method of obtaining jurisdiction of the person of foreign corporations, and has no relation to venue or territorial jurisdiction of the court from which the process issues. Foreign corproations are subject to suit in this state only in accordance with statutes so providing, and section 497, Code 1930, provides the place where suits against them must be brought.
The court below should have sustained the plea to the jurisdiction and dismissed the cause. After this plea was overruled, the appellant pleaded to, and the cause was tried on, the merits of the cause, because of which the appellee contends that the appellant waived its plea to the jurisdiction, and cannot now complain at the overruling thereof.
We will assume that the territorial jurisdiction of the court would have been waived had the appellant gone to trial on the merits without objecting to the court's jurisdiction; but it does not follow therefrom that such jurisdiction was here waived.
Under section 532, Code 1930, when the defendant's plea to the jurisdiction, or in abatement of a suit, is disallowed, he has the right to plead to the merits, but the statute does not provide that, by availing himself of this privilege, a defendant waives his former pleas, and no waiver results therefrom. Southern Pac. Co. v. Denton, 146 U.S. 202, 13 S.Ct. 44, 36 L.Ed. 942; Walling v. Beers, 120 Mass. 548; Miss. Central R.R. Co. v. Calhoun, 140 Miss. 289, 105 So. 519, wherein a case was tried by the lower court on its merits after an overruling of a plea to the jurisdiction; and cases cited in note to Fisher v. Crowley, 4 Ann. Cas. 290.
The appellee relies on Fisher v. Pacific Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846, and Camden Fire Ins. Ass'n v. Delaney Moss Co., 152 Miss. 342, 118 So. 535, neither of which is controlling here. In both of these cases it is clear that the court dealt with questions there presented simply as objections to the service of process under section 3946, Code 1906, section 2999, Code 1930, and correctly held that the defects in the process were cured by the appearance of the defendant to object to the process. By so appearing the defendants — but only because the statute so provides — subjected their persons to the jurisdiction of the court to the same extent as if they had been duly served with process; but this court has repeatedly held that such an appearance does not constitute a waiver of a defendant's right to plead to the jurisdiction of the court. Heggie v. Stone, 70 Miss. 41, 12 So. 253; Miss. Central R.R. Co. v. Calhoun, supra; Turner v. Williams, 162 Miss. 258, 139 So. 606; Arnett v. Smith, 165 Miss. 55, 145 So. 638.
Reversed, and cause dismissed.